Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam: Preliminary Results of the Second New Shipper Review, 4924-4929 [E9-1711]
Download as PDF
<![CDATA[
4924
Federal Register / Vol. 74, No. 17 / Wednesday, January 28, 2009 / Notices
presentations will be limited to issues
raised in the briefs. If we receive a
request for a hearing, we plan to hold
Weighted–Average the hearing seven days after the
Manufacturer/Exporter
Margin (Percent)
deadline for submission of the rebuttal
briefs at the U.S. Department of
Acom .............................
0.00 Commerce, 14th Street and Constitution
Avenue, NW, Washington, DC 20230.
Disclosure
The Department intends to issue the
final results of these new shipper
The Department will disclose to
reviews, which will include the results
parties of this proceeding the
of its analysis raised in any such
calculations performed in reaching the
comments, within 90 days of
preliminary results within five days of
publication of these preliminary results,
the date of publication of this notice in
pursuant to section 751(a)(2)(B)(iv) of
accordance with 19 CFR 351.224(b).
the Act.
Comments
Assessment Rates
In accordance with 19 CFR
Upon completion of the final results,
351.301(c)(3)(ii), for the final results of
pursuant to 19 CFR 351.212(b), the
this administrative review, interested
Department will determine, and CBP
parties may submit publicly available
shall assess, antidumping duties on all
information to value FOPs within 20
appropriate entries on a per–unit
days after the date of publication of
basis.12 The Department intends to issue
these preliminary results. Interested
assessment instructions to CBP 15 days
parties must provide the Department
after the date of publication of the final
with supporting documentation for the
results of review. If these preliminary
publicly available information to value
results are adopted in our final results
each FOP. Additionally, in accordance
of review, the Department shall
with 19 CFR 351.301(c)(1), for the final
determine, and CBP shall assess,
results of this administrative review,
antidumping duties on all appropriate
interested parties may submit factual
entries. Pursuant to 19 CFR
information to rebut, clarify, or correct
351.212(b)(1), we will calculate
factual information submitted by an
importer–specific (or customer) per–
interested party less than ten days
unit duty assessment rates. We will
before, on, or after, the applicable
instruct CBP to assess antidumping
deadline for submission of such factual
duties on all appropriate entries covered
information. However, the Department
by this review if any importer–specific
notes that 19 CFR 351.301(c)(1) permits
assessment rate calculated in the final
new information only insofar as it
results of this is above de minimis.
rebuts, clarifies, or corrects information
recently placed on the record.11
Cash–Deposit Requirements
Interested parties may submit case
The following cash deposit
briefs and/or written comments no later
requirements will be effective upon
than 30 days after the date of
publication of the final results of this
publication of these preliminary results
new shipper review for all shipments of
of this new shipper review. See 19 CFR
subject merchandise from Hiep Thanh
351.309(c)(ii). Rebuttal briefs and
or Acom entered, or withdrawn from
rebuttals to written comments, limited
warehouse, for consumption on or after
to issues raised in such briefs or
the publication date, as provided for by
comments, may be filed no later than 5
section 751(a)(2)(C) of the Act: (1) for
days after the deadline for submitting
subject merchandise produced and
the case briefs. See 19 CFR 351.309(d).
The Department requests that interested exported by Hiep Thanh or produced
and exported Acom, the cash deposit
parties provide an executive summary
rate will be zero; (2) for subject
of each argument contained within the
merchandise exported by Hiep Thanh or
case briefs and rebuttal briefs.
Acom but not manufactured by Hiep
Any interested party may request a
hearing within 30 days of publication of Thanh or Acom, the cash deposit rate
will continue to be the Vietnam–wide
these preliminary results. See 19 CFR
351.310(c). Requests should contain the rate (i.e., 63.88 percent); and (3) for
following information: (1) The party’s
12 We divided the total dumping margins
name, address, and telephone number;
(calculated as the difference between NV and EP or
(2) the number of participants; and (3)
CEP) for each importer by the total quantity of
a list of the issues to be discussed. Oral
subject merchandise sold to that importer during
sroberts on PROD1PC70 with NOTICES
CERTAIN FROZEN FISH FILLETS FROM
VIETNAM—Continued
11 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.
VerDate Nov<24>2008
17:30 Jan 27, 2009
Jkt 217001
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.
PO 00000
Frm 00012
Fmt 4703
Sfmt 4703
subject merchandise manufactured by
Hiep Thanh or Acom, 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 Importers
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)(2)(B) and 777(i) of the
Act, and 19 CFR 351.214(h) and
351.221(b)(4.
Dated: January 16, 2009.
Ronald K. Lorentzen,
Acting Assistant Secretary for Import
Administration.
[FR Doc. E9–1722 Filed 1–27–09; 8:45 am]
BILLING CODE 3510–DS–S
DEPARTMENT OF COMMERCE
International Trade Administration
A–552–802
Certain Frozen Warmwater Shrimp
from the Socialist Republic of Vietnam:
Preliminary Results of the Second New
Shipper Review
AGENCY: Import Administration,
International Trade Administration,
Department of Commerce.
SUMMARY: On February 1, 2005, the
Department of Commerce (‘‘the
Department’’) published in the Federal
Register the antidumping duty order on
certain frozen warmwater shrimp from
the Socialist Republic of Vietnam
(‘‘Vietnam’’). See Notice of Amended
Final Determination of Sales at Less
Than Fair Value and Antidumping Duty
Order: Certain Frozen Warmwater
Shrimp From the Socialist Republic of
Vietnam, 70 FR 5152 (February 1, 2005)
(‘‘VN Shrimp Order’’). The Department
is conducting a new shipper review
(‘‘NSR’’) of the VN Shrimp Order,
covering the period of review (‘‘POR’’)
E:\FR\FM\28JAN1.SGM
28JAN1
Federal Register / Vol. 74, No. 17 / Wednesday, January 28, 2009 / Notices
sroberts on PROD1PC70 with NOTICES
of February 1, 2007, through January 31,
2008. 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.
EFFECTIVE DATE: January 28, 2009.
FOR FURTHER INFORMATION CONTACT:
Emeka Chukwudebe, 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) 482–0219.
SUPPLEMENTARY INFORMATION:
through Alex Villanueva, Program
Manager, Verification of the Sales and
Factors Response of BIM Seafood Joint
Stock Company (‘‘BIM Seafood’’) in the
Antidumping New Shipper Review of
frozen Warmwater Shrimp from the
Socialist Republic of Vietnam
(‘‘Vietnam’’), dated December 17, 2008.
Scope of the Order
The scope of this order includes
certain frozen warmwater shrimp and
prawns, whether wild–caught (ocean
harvested) or farm–raised (produced by
aquaculture), head–on or head–off,
shell–on or peeled, tail–on or tail–off,1
deveined or not deveined, cooked or
raw, or otherwise processed in frozen
form.
The frozen warmwater shrimp and
prawn products included in the scope of
General Background
this order, regardless of definitions in
On February 28, 2008, pursuant to
the Harmonized Tariff Schedule of the
section 751(a)(2)(B)(i) of the Tariff Act
United States (HTSUS), are products
of 1930, as amended (‘‘the Act’’), and 19 which are processed from warmwater
CFR 351.214(c), the Department
shrimp and prawns through freezing
received a NSR request from BIM
and which are sold in any count size.
Seafood Joint Stock Company (‘‘BIM
The products described above may be
Seafood’’). On March 26, 2008, the
processed from any species of
Department initiated a new shipper
warmwater shrimp and prawns.
review for BIM Seafood. See Frozen
Warmwater shrimp and prawns are
Warmwater Shrimp From the Socialist
generally classified in, but are not
Republic of Vietnam: Initiation of
limited to, the Penaeidae family. Some
Antidumping Duty New Shipper Review, examples of the farmed and wild–
73 FR 18510 (April 4, 2008).
caught warmwater species include, but
On April 15, 2008, the Department
are not limited to, whiteleg shrimp
issued its non–market economy
(Penaeus vannemei), banana prawn
(‘‘NME’’) questionnaire to BIM Seafood. (Penaeus merguiensis), fleshy prawn
BIM Seafood responded to the
(Penaeus chinensis), giant river prawn
Department’s NME questionnaire and
(Macrobrachium rosenbergii), giant tiger
subsequent supplemental
prawn (Penaeus monodon), redspotted
questionnaires between May and
shrimp (Penaeus brasiliensis), southern
December 2008.
brown shrimp (Penaeus subtilis),
southern pink shrimp (Penaeus
Extension of Time Limits
notialis), southern rough shrimp
On September 17, 2008, the
(Trachypenaeus curvirostris), southern
Department extended the time limits for white shrimp (Penaeus schmitti), blue
these preliminary results. See Frozen
shrimp (Penaeus stylirostris), western
Warmwater Shrimp from the Socialist
white shrimp (Penaeus occidentalis),
Republic of Vietnam: Extension of Time and Indian white prawn (Penaeus
Limit for the Preliminary Results of the
indicus).
New Shipper Review, 73 FR 54788
Frozen shrimp and prawns that are
(September 23, 2008).
packed with marinade, spices or sauce
are included in the scope of this order.
Surrogate Country and Surrogate
In addition, food preparations, which
Values
are not ‘‘prepared meals,’’ that contain
On December 1, 2008, BIM Seafood
more than 20 percent by weight of
submitted surrogate country comments
shrimp or prawn are also included in
and surrogate value data. No other party the scope of this order.
submitted surrogate country or surrogate
Excluded from the scope are: 1)
value data.
Breaded shrimp and prawns (HTS
subheading 1605.20.10.20); 2) shrimp
Verification
and prawns generally classified in the
Pursuant to 19 CFR 351.307(b)(iv), we Pandalidae family and commonly
conducted verification of the sales and
referred to as coldwater shrimp, in any
factors of production (‘‘FOP’’) for BIM
state of processing; 3) fresh shrimp and
Seafood between November 3–11, 2008.
See Memorandum to the File from
1 ‘‘Tails’’ in this context means the tail fan, which
includes the telson and the uropods.
Emeka Chukwudebe, Case Analyst
VerDate Nov<24>2008
17:30 Jan 27, 2009
Jkt 217001
PO 00000
Frm 00013
Fmt 4703
Sfmt 4703
4925
prawns whether shell–on or peeled
(HTS subheadings 0306.23.00.20 and
0306.23.00.40); 4) shrimp and prawns in
prepared meals (HTS subheading
1605.20.05.10); 5) dried shrimp and
prawns; 6) canned warmwater shrimp
and prawns (HTS subheading
1605.20.10.40); 7) certain dusted
shrimp; and 8) certain battered shrimp.
Dusted shrimp is a shrimp–based
product: 1) that is produced from fresh
(or thawed–from-frozen) and peeled
shrimp; 2) to which a ‘‘dusting’’ layer of
rice or wheat flour of at least 95 percent
purity has been applied; 3) with the
entire surface of the shrimp flesh
thoroughly and evenly coated with the
flour; 4) with the non–shrimp content of
the end product constituting between
four and 10 percent of the product’s
total weight after being dusted, but prior
to being frozen; and 5) that is subjected
to IQF freezing immediately after
application of the dusting layer.
Battered shrimp is a shrimp–based
product that, when dusted in
accordance with the definition of
dusting above, is coated with a wet
viscous layer containing egg and/or
milk, and par–fried.
The products covered by this order
are currently classified under the
following HTSUS subheadings:
0306.13.00.03, 0306.13.00.06,
0306.13.00.09, 0306.13.00.12,
0306.13.00.15, 0306.13.00.18,
0306.13.00.21, 0306.13.00.24,
0306.13.00.27, 0306.13.00.40,
1605.20.10.10, and 1605.20.10.30. These
HTSUS subheadings are provided for
convenience and for customs purposes
only and are not dispositive, but rather
the written description of the scope of
this order is dispositive.
Non–Market Economy Country Status
In every Vietnamese antidumping
duty (‘‘AD’’) case conducted by the
Department, Vietnam has been treated
as a 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, 71007 (December 8, 2004);
and 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
E:\FR\FM\28JAN1.SGM
28JAN1
4926
Federal Register / Vol. 74, No. 17 / Wednesday, January 28, 2009 / Notices
treatment. Accordingly, we calculated
normal value (‘‘NV’’) in accordance with
section 773(c) of the Act, which applies
to NME countries.
sroberts on PROD1PC70 with NOTICES
Separate Rate Determination
A designation 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, 56 FR 20588
(May 6, 1991) (‘‘Sparklers’’), as
amplified by the Notice of 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.
In this review, BIM Seafood submitted
complete responses to the separate rate
section of the Department’s NME
questionnaire. The evidence submitted
by BIM Seafood includes government
laws and regulations on corporate
ownership, business licenses, and
narrative information regarding the
company’s operations and selection of
management. The evidence provided by
BIM Seafood supports a finding of a de
jure absence of government control over
their export activities. We have no
information in this proceeding that
would cause us to reconsider this
determination. 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
VerDate Nov<24>2008
17:30 Jan 27, 2009
Jkt 217001
the record decentralizing control over
the respondents.
B. Absence of De Facto Control
The absence of de facto government
control over exports is based on whether
the Respondent: (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; 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).
In its questionnaire responses, BIM
Seafood submitted evidence indicating
an absence of de facto government
control over its export activities.
Specifically, this evidence indicates
that: (1) BIM Seafood sets its own export
prices independent of the government
and without the approval of a
government authority; (2) BIM Seafood
retains the proceeds from its sales and
makes independent decisions regarding
the disposition of profits or financing of
losses; (3) BIM Seafood 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 BIM Seafood’s
use of export revenues. Therefore, the
Department preliminarily finds that BIM
Seafood has established prima facie that
it qualifies for a separate rate under the
criteria established by Silicon Carbide
and Sparklers.
New Shipper Review Bona Fide
Analysis
Consistent with the Department’s
practice, we investigated the bona fide
nature of the sale made by BIM Seafood
for this new shipper review. We found
that the new shipper sale by BIM
Seafood was made on a bona fide basis.
Based on our investigation into the bona
fide nature of the sales, the
questionnaire responses submitted by
BIM Seafood, and our verification
thereof, as well as the company’s
eligibility for a separate rate (see
Separate Rates Determination section
above), we preliminarily determine that
BIM Seafood has met the requirements
PO 00000
Frm 00014
Fmt 4703
Sfmt 4703
to qualify as a new shipper during this
POR. Therefore, for the purposes of
these preliminary results of review, we
are treating BIM Seafood’s sale of
subject merchandise to the United
States as an appropriate transaction for
this new shipper review.2
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 factors of production
(‘‘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 Department determined that
Bangladesh, Pakistan, India, Sri Lanka,
and Indonesia are countries comparable
to Vietnam in terms of economic
development.3 Moreover, it is the
Department’s practice to select an
appropriate surrogate country 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) (‘‘Surrogate
Country Policy Bulletin’’). Since the
less–than-fair value investigation, we
have determined that Bangladesh is
comparable to Vietnam in terms of
economic development and has
surrogate value data that is available
and reliable. In this proceeding, we only
received comments from BIM Seafood
in which it argues that the Department
should again select Bangladesh as the
surrogate country based on the two
factors listed in the Surrogate Country
Policy Bulletin. Since no information
has been provided in this review that
would warrant a change in the
Department’s selection of Bangladesh
from the prior segments, we continue to
2 For more detailed discussion of this issue,
please see Memorandum from Emeka Chukwudebe,
Case Analyst, Office 9, through Alex Villanueva,
Program Manager, Office 9, to the File, ‘‘Bona Fide
Nature of the Sale in the Second Antidumping Duty
New Shipper Review of Certain Frozen Warmwater
Shrimp from the Socialist Republic of Vietnam:
BIM Seafood,’’ (January 16, 2009).
3 See Memorandum from Kelley Parkhill, Acting
Director, Office of Policy, to Alex Villanueva,
Program Manager, AD/CVD Enforcement, Office 9:
New Shipper Review of Certain Warmwater Shrimp
from Vietnam: List of Surrogate Countries, dated
January 15, 2009.
E:\FR\FM\28JAN1.SGM
28JAN1
Federal Register / Vol. 74, No. 17 / Wednesday, January 28, 2009 / Notices
find that Bangladesh is the appropriate
surrogate country here 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 reliable, publicly
available data representing a broad–
market average. See Memorandum to
the File, through James C. Doyle, Office
Director, Office 9, Import
Administration, from Irene Gorelik,
Senior Case Analyst, Subject: Second
Antidumping Duty Administrative
Review of Certain Frozen Warmwater
Shrimp from the Socialist Republic of
Vietnam: Selection of a Surrogate
Country (February 28, 2008), which is
on the record of this review.
U.S. Price
A. Export Price (‘‘EP’’)
In accordance with section 772(a) of
the Act, we calculated the EP for sales
to the United States for BIM Seafood
because the first sale to an unaffiliated
party was made before the date of
importation and the use of constructed
EP (‘‘CEP’’) was not otherwise
warranted. We calculated EP based on
the price to unaffiliated purchasers in
the United States. In accordance with
section 772(c) of the Act, as appropriate,
we deducted foreign inland freight and
brokerage and handling from the
starting price to the unaffiliated
purchasers. We have reviewed each of
these services and expenses reported by
BIM Seafood and find that they were
provided by an NME vendor or paid for
using Vietnamese currency. Thus, we
based the deduction of these movement
charges on surrogate values. See
Memorandum to the File through Alex
Villanueva, Program Manager, Office 9
from Emeka Chukwudebe, Case Analyst,
Office 9: Antidumping Duty New
Shipper of Certain Warmwater Shrimp
from the Socialist Republic of Vietnam:
Surrogate Values for the Preliminary
Results, (January 16, 2008) (‘‘Surrogate
Values Memo’’) for details regarding the
surrogate values for movement
expenses.
sroberts on PROD1PC70 with NOTICES
Normal Value
1. Methodology
Section 773(c)(1)(B) of the Act
provides that the Department shall
determine the NV using a 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. The Department bases NV on
the FOPs because the presence of
VerDate Nov<24>2008
17:30 Jan 27, 2009
Jkt 217001
government controls on various aspects
of NMEs renders price comparisons and
the calculation of production costs
invalid under the Department’s normal
methodologies.
Section 773(c)(1) of the Act provides
that the Department shall determine the
NV using a factors–of-production
methodology if: (1) the merchandise is
exported from an NME country; and (2)
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.
Although the respondents reported
the inputs used to produce the main
input to the processing stage (raw head–
on, shell–on shrimp), for the purposes
of these preliminary results, we are not
valuing those inputs when calculating
NV. Rather, our NV calculation begins
with a valuation of the shrimp input
(raw head–on, shell–on shrimp) used to
produce the merchandise under
investigation for the following three
reasons. First, in reviewing BIM
Seafood’s direct, indirect and contract
labor hours for hatchery and farming,
we noted that they did not keep track
of the actual hours worked. BIM
Seafood officials explained that there
are no real fixed–time labor shifts due
to the 24–hour cyclical growth period of
shrimp. Second, BIM Seafood did not
report water usage for the hatchery and
farming stages of production. In its
October 16, 2008, questionnaire
response, BIM Seafood explained that
water consumption at the hatchery and
farming stages was not available from its
own books and records. See BIM
Seafood’s Questionnaire Response at 3.
However, during verification we noted
that water was used in ponds and tanks
throughout the hatchery and farming
stages. Third, due to inadequate FOP
descriptions, certain material inputs at
the hatchery and farming stages are not
easily identifiable for the purpose of
selecting surrogate values. When asked
to provide a detailed description for
these material inputs, BIM Seafood only
provided a broad, general description.
For instance, BIM Seafood’s first Section
D response contains two FOPs described
as ‘‘enzymes.’’ When asked in a
supplemental response to provide the
HTS classification for these inputs such
as these two items, BIM Seafood only
provided a broad 4–digit HTS number.
At verification, BIM Seafood was unable
to provide additional information
regarding the descriptions and more
specific HTS classifications for these
and other inputs and we noted that a
more detailed level of specificity did not
appear to be tracked by BIM seafood’s
book and records. Because BIM Seafood
PO 00000
Frm 00015
Fmt 4703
Sfmt 4703
4927
could not provide more detailed
information regarding these and other
inputs, the Department is unable to
determine appropriate surrogate values
for these inputs.
In the past, the Department has used
an intermediate input methodology
when the accuracy of the normal value
based on an integrated FOP calculation
would be sacrificed, (e.g., Fish Fillets
from Vietnam4 and Garlic from China5).
In this case, because the labor reported
was not based on actual hours worked,
water was unreported, and the surrogate
valuation of the inadequately described
hatchery and farming FOPs would be
speculative at best, we have determined
to use an intermediate input
methodology. As a result, we will begin
the normal value calculation at the
processing stage and apply a surrogate
value for raw, head–on, shell–on
shrimp.
2. Factor Valuations
In accordance with section 773(c) of
the Act, we calculated NV based on
FOPs reported by BIM Seafood during
the POR. To calculate NV, we
multiplied the reported per–unit factor–
consumption rates by publicly available
Bangladeshi surrogate values. In
selecting the surrogate values, we
considered the quality, specificity, and
contemporaneity of the data. As
appropriate, we adjusted input prices by
including freight costs to make them
delivered prices. Specifically, we added
to Bangladeshi import surrogate values
a surrogate freight cost using the shorter
of the reported distance from the
domestic supplier to the factory of
production or the distance from the
nearest seaport to the factory of
production where appropriate. This
adjustment is in accordance with the
Court of Appeals for the Federal
Circuit’s decision in Sigma Corp. v.
United States, 117 F. 3d 1401, 1407–
4 See Notice of Preliminary Determination of
Sales at Less Than Fair Value, Affirmative
Preliminary Determination of Critical
Circumstances and Postponement of Final
Determination: Certain Frozen Fish Fillets From the
Socialist Republic of Vietnam, 68 FR 4986 (January
31, 2003), 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), and accompanying
Issues and Decision Memorandum at Comment 3.
5 See Fresh Garlic from the People’s Republic of
China: Final Results of Antidumping Duty
Administrative Review, 70 FR 34082 (June 13, 2005)
and accompanying Issues and Decision
Memorandum at Comment 1, Fresh Garlic from the
People’s Republic of China: Final Results and
Partial Rescission of Antidumping Duty
Administrative Review and Final Results of New
Shipper Reviews, 71 FR 26329, 26330 (May 4,
2006), and accompanying Issues and Decision
Memorandum, at Comment 1.
E:\FR\FM\28JAN1.SGM
28JAN1
4928
Federal Register / Vol. 74, No. 17 / Wednesday, January 28, 2009 / Notices
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.6
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
Preliminary Results of the Review
351.310(c). Requests should contain the
following information: (1) The party’s
The Department has determined that
name, address, and telephone number;
the following preliminary dumping
(2) the number of participants; and (3)
margins exist for the period February 1,
a list of the issues to be discussed. Oral
2007, through January 31, 2008:
presentations will be limited to issues
raised in the briefs. If we receive a
CERTAIN FROZEN WARMWATER
request for a hearing, we plan to hold
SHRIMP FROM VIETNAM
the hearing seven days after the
deadline for submission of the rebuttal
Weighted–
briefs at the U.S. Department of
Average
Manufacturer/Exporter
Commerce, 14th Street and Constitution
Margin
(Percent)
Avenue, NW, Washington, DC 20230.
The Department intends to issue the
BIM Seafood Join Stock Comfinal results of this new shipper review,
pany (BIM Seafood) ................
0.00
which will include the results of its
analysis raised in any such comments,
Disclosure
within 90 days of publication of these
preliminary results, pursuant to section
The Department will disclose to
751(a)(2)(B)(iv) of the Act.
parties of this proceeding the
calculations performed in reaching the
Assessment Rates
preliminary results within five days of
Upon completion of the final results,
the date of publication of this notice in
pursuant to 19 CFR 351.212(b), the
accordance with 19 CFR 351.224(b).
Department will determine, and CBP
Comments
sroberts on PROD1PC70 with NOTICES
1408 (Fed. Cir. 1997). Where we did not
use Bangladeshi Import Statistics, we
calculated freight based on the reported
distance from the supplier to the
factory.
It is the Department’s practice to
calculate price index adjustors to inflate
or deflate, as appropriate, surrogate
values that are not contemporaneous
with the POR using the wholesale price
index (‘‘WPI’’) for the subject country.
See Notice of Preliminary Determination
of Sales at Less Than Fair Value and
Postponement of Final Determination:
Hand Trucks and Certain Parts Thereof
from the People’s Republic of China, 69
FR 29509 (May 24, 2004). However, in
this case, a WPI was not available for
Bangladesh. Therefore, where publicly
available information contemporaneous
with the POI with which to value factors
could not be obtained, surrogate values
were adjusted using the Consumer Price
Index rate for Bangladesh, or the WPI
for India or Indonesia (for certain
surrogate values where Bangladeshi data
could not be obtained), as published in
the International Financial Statistics of
the International Monetary Fund.
Bangladeshi and other surrogate
values denominated in foreign
currencies were converted to USD using
the applicable average exchange rate
based on exchange rate data from the
Department’s website.
For details regarding the surrogate
values used to calculate NV, see the
Surrogate Values Memo.
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
VerDate Nov<24>2008
17:30 Jan 27, 2009
Jkt 217001
6 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.
PO 00000
Frm 00016
Fmt 4703
Sfmt 4703
shall assess, antidumping duties on all
appropriate entries on a per–unit basis.7
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.
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 BIM Seafood
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 BIM Seafood, the cash
deposit rate is zero; (2) for subject
merchandise exported by BIM Seafood
but not manufactured by BIM Seafood,
the cash deposit rate will continue to be
the Vietnam–wide rate (i.e., 25.76
percent); and (3) for subject
merchandise manufactured by BIM
Seafood, 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 Importers
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
7 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.
E:\FR\FM\28JAN1.SGM
28JAN1
Federal Register / Vol. 74, No. 17 / Wednesday, January 28, 2009 / Notices
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)(2)(B) and 777(i) of the
Act, and 19 CFR 351.214(h) and
351.221(b)(4).
Dated: January 16, 2009.
Ronald K. Lorentzen,
Acting Assistant Secretary for Import
Administration.
[FR Doc. E9–1711 Filed 1–27–09; 8:45 am]
BILLING CODE 3510–DS–S
DEPARTMENT OF COMMERCE
International Trade Administration
(A–570–939)
Certain Tow Behind Lawn Groomers
and Certain Parts Thereof from the
People’s Republic of China:
Preliminary Determination of Sales at
Less Than Fair Value and
Postponement of Final Determination
sroberts on PROD1PC70 with NOTICES
AGENCY: Import Administration,
International Trade Administration,
Department of Commerce.
EFFECTIVE DATE: January 28, 2009.
SUMMARY: The Department of Commerce
(the ‘‘Department’’) preliminarily
determines that certain tow behind lawn
groomers and certain parts thereof
(‘‘lawn groomers’’) from the People’s
Republic of China (‘‘PRC’’) are being, or
are likely to be, sold in the United States
at less than fair value (‘‘LTFV’’), as
provided in section 733(b) of the Tariff
Act of 1930, as amended (the ‘‘Act’’).
The estimated dumping margins are
shown in the ‘‘Preliminary
Determination Margins’’ section of this
notice.
FOR FURTHER INFORMATION CONTACT:
Karine Gziryan or Thomas Martin, AD/
CVD Operations, Office 4, Import
Administration, International Trade
Administration, U.S. Department of
Commerce, 14th Street and Constitution
Avenue, NW, Washington, DC 20230;
telephone: (202) 482–4081or (202) 482–
3936, respectively.
SUPPLEMENTARY INFORMATION:
Background
On June 24, 2008, the Department
received a petition concerning imports
of certain non–motorized tow behind
lawn groomers and certain parts thereof
from the PRC filed in proper form by
Agri–Fab Inc. (‘‘Agri–Fab’’, hereafter
referred to as ‘‘Petitioner’’). See Petition
for the Imposition of Antidumping
Duties: Certain Tow Behind Lawn
VerDate Nov<24>2008
17:30 Jan 27, 2009
Jkt 217001
Groomers and Parts Thereof from the
People’s Republic of China, dated June
24, 2008 (‘‘Petition’’). The Department
initiated an antidumping duty
investigation of lawn groomers from the
PRC on July 21, 2008. See Certain Tow
Behind Lawn Groomers and Certain
Parts Thereof from the People’s
Republic of China: Initiation of
Antidumping Duty Investigation, 73 FR
42315 (July 21, 2008) (‘‘Initiation
Notice’’).
On July 14, 2008, the Department
requested quantity and value (‘‘Q&V’’)
information from the twelve companies
that were identified in the Petition as
potential producers or exporters of lawn
groomers from the PRC. See Exhibit I–
19 of the Petition. The Department
received timely responses to its Q&V
questionnaire from the following
companies: Qingdao Huatian Hand
Truck Co., Ltd., Jiashan Superpower
Tools Co., Ltd., T.N. International, Inc.,
Nantong Duobang Machinery Co., Ltd.,
and Princeway Furniture (Dong Guan)
Co., Ltd. Five companies to which the
Department sent the Q&V questionnaire
received the questionnaire but did not
respond. These non–responsive
companies were: Hangzhou Geesun
International Co., Ltd., Qingdao
Huandai Tools Co., Ltd., Qingdao Taifa
Group Co., Ltd., Maxchief Investments
Ltd., and Qingdao EA Huabang
Instrument Co., Ltd.
With regard to two additional
companies, World Factory, Inc., and
Sidepin, Ltd., on July 21, 2008, we
spoke with Federal Express, via
telephone, and were informed that,
although World Factory, Inc., originally
accepted delivery of the Q&V
questionnaire, it ultimately rejected our
mailing and returned the package to
Federal Express. In addition, on July 21,
2008, we spoke via telephone with DHL
and were informed that DHL was unable
to deliver our mailing to Sidepin, Ltd.,
due to a ‘‘bad address.’’1 See
Memorandum to The File, from Maisha
Cryor, Senior Import Compliance
Specialist, Regarding ‘‘Certain Tow
Behind Lawn Groomers and Certain
1 The petitioner provided contact information for
the twelve Chinese producers/exporters of lawn
groomers named in the Petition. See Petition at
Exhibit I-19. However, upon noticing that several of
the addresses provided were incomplete, the
Department asked the petitioner to update the
aforementioned contact information to account for
full addresses, e.g., contact name, postal code, street
names and numbers, etc. See the Department’s July
3, 2008, supplemental questionnaire at 3. In
response, the petitioner provided updated contact
information, but noted that this information
represented its ‘‘best attempt using reasonably
available information to update the Chinese
manufacturer and exporter contact information.’’
See Supplement to the Petition at 2 and Exhibit 2,
dated July 8, 2008.
PO 00000
Frm 00017
Fmt 4703
Sfmt 4703
4929
Parts Thereof from the People’s
Republic of China: Summary of Issuance
of Quantity and Value Questionnaires,’’
dated July 21, 2008.
On August 21, 2008, the International
Trade Commission (‘‘ITC’’)
preliminarily determined that there is a
reasonable indication that an industry
in the United States is materially
injured by reason of imports of lawn
groomers from the PRC. See
CertainTow–Behind Lawn Groomers
and Certain Parts Thereof from China
Determinations Investigation Nos. 701–
TA–457 and 731–TA–1153
(Preliminary), 73 FR 49489 (August 21,
2008).
On August 18, 2008, the Department
selected Jiashan Superpower Tools Co.,
Ltd. (‘‘Superpower’’), and Princeway
Furniture (Dong Guan) Co., Ltd.
(‘‘Princeway’’), as mandatory
respondents and issued antidumping
duty questionnaires to the companies.
See Memorandum regarding ‘‘Selection
of Respondents for the Antidumping
Duty Investigation of Certain Tow
Behind Lawn Groomers and Parts
Thereof from the People’s Republic of
China,’’ dated August 18, 2008
(‘‘Respondent Selection
Memorandum’’).
Superpower and Princeway submitted
timely responses to the Department’s
antidumping duty questionnaire on
September 24, 2008, and October 14,
2008, respectively. On July 23, 2008,
and July 30, 2008, the Department
received separate–rate applications from
Nantong D&B Machinery Co., Ltd., and
Qingdao Huatian Truck Co., Ltd.,
respectively.
The Department issued supplemental
questionnaires to, and received
responses from, Superpower and
Princeway from September through
December 2008. Petitioner submitted
comments to the Department regarding
Princeway’s and Superpower’s
responses to sections C and D of the
antidumping duty questionnaire on
October 24, 2008 and additional
comments on Princeway’s submissions
on December 2, 2008.
On September 30, 2008, the
Department released a memorandum to
interested parties which listed potential
surrogate countries and invited
interested parties to comment on
surrogate country and surrogate value
selection. See Memorandum to All
Interested Parties Regarding
Antidumping Duty Investigation of
Certain Tow Behind Lawn Groomers
and Certain Parts Thereof from the
People’s Republic of China (‘‘PRC’’). On
October 17, 2008, and October 28, 2008,
Petitioner and Princeway submitted
comments and rebuttal comments,
E:\FR\FM\28JAN1.SGM
28JAN1
]]>Agencies
[Federal Register Volume 74, Number 17 (Wednesday, January 28, 2009)]
[Notices]
[Pages 4924-4929]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-1711]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
A-552-802
Certain Frozen Warmwater Shrimp from the Socialist Republic of
Vietnam: Preliminary Results of the Second New Shipper Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: On February 1, 2005, the Department of Commerce (``the
Department'') published in the Federal Register the antidumping duty
order on certain frozen warmwater shrimp from the Socialist Republic of
Vietnam (``Vietnam''). See Notice of Amended Final Determination of
Sales at Less Than Fair Value and Antidumping Duty Order: Certain
Frozen Warmwater Shrimp From the Socialist Republic of Vietnam, 70 FR
5152 (February 1, 2005) (``VN Shrimp Order''). The Department is
conducting a new shipper review (``NSR'') of the VN Shrimp Order,
covering the period of review (``POR'')
[[Page 4925]]
of February 1, 2007, through January 31, 2008. 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.
EFFECTIVE DATE: January 28, 2009.
FOR FURTHER INFORMATION CONTACT: Emeka Chukwudebe, 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) 482-0219.
SUPPLEMENTARY INFORMATION:
General Background
On February 28, 2008, pursuant to section 751(a)(2)(B)(i) of the
Tariff Act of 1930, as amended (``the Act''), and 19 CFR 351.214(c),
the Department received a NSR request from BIM Seafood Joint Stock
Company (``BIM Seafood''). On March 26, 2008, the Department initiated
a new shipper review for BIM Seafood. See Frozen Warmwater Shrimp From
the Socialist Republic of Vietnam: Initiation of Antidumping Duty New
Shipper Review, 73 FR 18510 (April 4, 2008).
On April 15, 2008, the Department issued its non-market economy
(``NME'') questionnaire to BIM Seafood. BIM Seafood responded to the
Department's NME questionnaire and subsequent supplemental
questionnaires between May and December 2008.
Extension of Time Limits
On September 17, 2008, the Department extended the time limits for
these preliminary results. See Frozen Warmwater Shrimp from the
Socialist Republic of Vietnam: Extension of Time Limit for the
Preliminary Results of the New Shipper Review, 73 FR 54788 (September
23, 2008).
Surrogate Country and Surrogate Values
On December 1, 2008, BIM Seafood submitted surrogate country
comments and surrogate value data. No other party submitted surrogate
country or surrogate value data.
Verification
Pursuant to 19 CFR 351.307(b)(iv), we conducted verification of the
sales and factors of production (``FOP'') for BIM Seafood between
November 3-11, 2008. See Memorandum to the File from Emeka Chukwudebe,
Case Analyst through Alex Villanueva, Program Manager, Verification of
the Sales and Factors Response of BIM Seafood Joint Stock Company
(``BIM Seafood'') in the Antidumping New Shipper Review of frozen
Warmwater Shrimp from the Socialist Republic of Vietnam (``Vietnam''),
dated December 17, 2008.
Scope of the Order
The scope of this order includes certain frozen warmwater shrimp
and prawns, whether wild-caught (ocean harvested) or farm-raised
(produced by aquaculture), head-on or head-off, shell-on or peeled,
tail-on or tail-off,\1\ deveined or not deveined, cooked or raw, or
otherwise processed in frozen form.
---------------------------------------------------------------------------
\1\ ``Tails'' in this context means the tail fan, which includes
the telson and the uropods.
---------------------------------------------------------------------------
The frozen warmwater shrimp and prawn products included in the
scope of this order, regardless of definitions in the Harmonized Tariff
Schedule of the United States (HTSUS), are products which are processed
from warmwater shrimp and prawns through freezing and which are sold in
any count size.
The products described above may be processed from any species of
warmwater shrimp and prawns. Warmwater shrimp and prawns are generally
classified in, but are not limited to, the Penaeidae family. Some
examples of the farmed and wild-caught warmwater species include, but
are not limited to, whiteleg shrimp (Penaeus vannemei), banana prawn
(Penaeus merguiensis), fleshy prawn (Penaeus chinensis), giant river
prawn (Macrobrachium rosenbergii), giant tiger prawn (Penaeus monodon),
redspotted shrimp (Penaeus brasiliensis), southern brown shrimp
(Penaeus subtilis), southern pink shrimp (Penaeus notialis), southern
rough shrimp (Trachypenaeus curvirostris), southern white shrimp
(Penaeus schmitti), blue shrimp (Penaeus stylirostris), western white
shrimp (Penaeus occidentalis), and Indian white prawn (Penaeus
indicus).
Frozen shrimp and prawns that are packed with marinade, spices or
sauce are included in the scope of this order. In addition, food
preparations, which are not ``prepared meals,'' that contain more than
20 percent by weight of shrimp or prawn are also included in the scope
of this order.
Excluded from the scope are: 1) Breaded shrimp and prawns (HTS
subheading 1605.20.10.20); 2) shrimp and prawns generally classified in
the Pandalidae family and commonly referred to as coldwater shrimp, in
any state of processing; 3) fresh shrimp and prawns whether shell-on or
peeled (HTS subheadings 0306.23.00.20 and 0306.23.00.40); 4) shrimp and
prawns in prepared meals (HTS subheading 1605.20.05.10); 5) dried
shrimp and prawns; 6) canned warmwater shrimp and prawns (HTS
subheading 1605.20.10.40); 7) certain dusted shrimp; and 8) certain
battered shrimp. Dusted shrimp is a shrimp-based product: 1) that is
produced from fresh (or thawed-from-frozen) and peeled shrimp; 2) to
which a ``dusting'' layer of rice or wheat flour of at least 95 percent
purity has been applied; 3) with the entire surface of the shrimp flesh
thoroughly and evenly coated with the flour; 4) with the non-shrimp
content of the end product constituting between four and 10 percent of
the product's total weight after being dusted, but prior to being
frozen; and 5) that is subjected to IQF freezing immediately after
application of the dusting layer. Battered shrimp is a shrimp-based
product that, when dusted in accordance with the definition of dusting
above, is coated with a wet viscous layer containing egg and/or milk,
and par-fried.
The products covered by this order are currently classified under
the following HTSUS subheadings: 0306.13.00.03, 0306.13.00.06,
0306.13.00.09, 0306.13.00.12, 0306.13.00.15, 0306.13.00.18,
0306.13.00.21, 0306.13.00.24, 0306.13.00.27, 0306.13.00.40,
1605.20.10.10, and 1605.20.10.30. These HTSUS subheadings are provided
for convenience and for customs purposes only and are not dispositive,
but rather the written description of the scope of this order is
dispositive.
Non-Market Economy Country Status
In every Vietnamese antidumping duty (``AD'') case conducted by the
Department, Vietnam has been treated as a 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, 71007 (December 8, 2004);
and 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
[[Page 4926]]
treatment. Accordingly, we calculated normal value (``NV'') in
accordance with section 773(c) of the Act, which applies to NME
countries.
Separate Rate Determination
A designation 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, 56 FR 20588 (May
6, 1991) (``Sparklers''), as amplified by the Notice of 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.
In this review, BIM Seafood submitted complete responses to the
separate rate section of the Department's NME questionnaire. The
evidence submitted by BIM Seafood includes government laws and
regulations on corporate ownership, business licenses, and narrative
information regarding the company's operations and selection of
management. The evidence provided by BIM Seafood supports a finding of
a de jure absence of government control over their export activities.
We have no information in this proceeding that would cause us to
reconsider this determination. 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 respondents.
B. Absence of De Facto Control
The absence of de facto government control over exports is based on
whether the Respondent: (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; 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).
In its questionnaire responses, BIM Seafood submitted evidence
indicating an absence of de facto government control over its export
activities. Specifically, this evidence indicates that: (1) BIM Seafood
sets its own export prices independent of the government and without
the approval of a government authority; (2) BIM Seafood retains the
proceeds from its sales and makes independent decisions regarding the
disposition of profits or financing of losses; (3) BIM Seafood 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 BIM Seafood's use
of export revenues. Therefore, the Department preliminarily finds that
BIM Seafood has established prima facie that it qualifies for a
separate rate under the criteria established by Silicon Carbide and
Sparklers.
New Shipper Review Bona Fide Analysis
Consistent with the Department's practice, we investigated the bona
fide nature of the sale made by BIM Seafood for this new shipper
review. We found that the new shipper sale by BIM Seafood was made on a
bona fide basis. Based on our investigation into the bona fide nature
of the sales, the questionnaire responses submitted by BIM Seafood, and
our verification thereof, as well as the company's eligibility for a
separate rate (see Separate Rates Determination section above), we
preliminarily determine that BIM Seafood 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 BIM Seafood's
sale of subject merchandise to the United States as an appropriate
transaction for this new shipper review.\2\
---------------------------------------------------------------------------
\2\ For more detailed discussion of this issue, please see
Memorandum from Emeka Chukwudebe, Case Analyst, Office 9, through
Alex Villanueva, Program Manager, Office 9, to the File, ``Bona Fide
Nature of the Sale in the Second Antidumping Duty New Shipper Review
of Certain Frozen Warmwater Shrimp from the Socialist Republic of
Vietnam: BIM Seafood,'' (January 16, 2009).
---------------------------------------------------------------------------
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 factors of production (``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 Department determined that Bangladesh, Pakistan, India, Sri
Lanka, and Indonesia are countries comparable to Vietnam in terms of
economic development.\3\ Moreover, it is the Department's practice to
select an appropriate surrogate country 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) (``Surrogate Country Policy Bulletin''). Since the less-than-
fair value investigation, we have determined that Bangladesh is
comparable to Vietnam in terms of economic development and has
surrogate value data that is available and reliable. In this
proceeding, we only received comments from BIM Seafood in which it
argues that the Department should again select Bangladesh as the
surrogate country based on the two factors listed in the Surrogate
Country Policy Bulletin. Since no information has been provided in this
review that would warrant a change in the Department's selection of
Bangladesh from the prior segments, we continue to
[[Page 4927]]
find that Bangladesh is the appropriate surrogate country here 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 reliable, publicly available data representing a
broad-market average. See Memorandum to the File, through James C.
Doyle, Office Director, Office 9, Import Administration, from Irene
Gorelik, Senior Case Analyst, Subject: Second Antidumping Duty
Administrative Review of Certain Frozen Warmwater Shrimp from the
Socialist Republic of Vietnam: Selection of a Surrogate Country
(February 28, 2008), which is on the record of this review.
---------------------------------------------------------------------------
\3\ See Memorandum from Kelley Parkhill, Acting Director, Office
of Policy, to Alex Villanueva, Program Manager, AD/CVD Enforcement,
Office 9: New Shipper Review of Certain Warmwater Shrimp from
Vietnam: List of Surrogate Countries, dated January 15, 2009.
---------------------------------------------------------------------------
U.S. Price
A. Export Price (``EP'')
In accordance with section 772(a) of the Act, we calculated the EP
for sales to the United States for BIM Seafood because the first sale
to an unaffiliated party was made before the date of importation and
the use of constructed EP (``CEP'') was not otherwise warranted. We
calculated EP based on the price to unaffiliated purchasers in the
United States. In accordance with section 772(c) of the Act, as
appropriate, we deducted foreign inland freight and brokerage and
handling from the starting price to the unaffiliated purchasers. We
have reviewed each of these services and expenses reported by BIM
Seafood and find that they were provided by an NME vendor or paid for
using Vietnamese currency. Thus, we based the deduction of these
movement charges on surrogate values. See Memorandum to the File
through Alex Villanueva, Program Manager, Office 9 from Emeka
Chukwudebe, Case Analyst, Office 9: Antidumping Duty New Shipper of
Certain Warmwater Shrimp from the Socialist Republic of Vietnam:
Surrogate Values for the Preliminary Results, (January 16, 2008)
(``Surrogate Values Memo'') for details regarding the surrogate values
for movement expenses.
Normal Value
1. Methodology
Section 773(c)(1)(B) of the Act provides that the Department shall
determine the NV using a 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. The Department bases NV on the FOPs
because the presence of government controls on various aspects of NMEs
renders price comparisons and the calculation of production costs
invalid under the Department's normal methodologies.
Section 773(c)(1) of the Act provides that the Department shall
determine the NV using a factors-of-production methodology if: (1) the
merchandise is exported from an NME country; and (2) 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.
Although the respondents reported the inputs used to produce the
main input to the processing stage (raw head-on, shell-on shrimp), for
the purposes of these preliminary results, we are not valuing those
inputs when calculating NV. Rather, our NV calculation begins with a
valuation of the shrimp input (raw head-on, shell-on shrimp) used to
produce the merchandise under investigation for the following three
reasons. First, in reviewing BIM Seafood's direct, indirect and
contract labor hours for hatchery and farming, we noted that they did
not keep track of the actual hours worked. BIM Seafood officials
explained that there are no real fixed-time labor shifts due to the 24-
hour cyclical growth period of shrimp. Second, BIM Seafood did not
report water usage for the hatchery and farming stages of production.
In its October 16, 2008, questionnaire response, BIM Seafood explained
that water consumption at the hatchery and farming stages was not
available from its own books and records. See BIM Seafood's
Questionnaire Response at 3. However, during verification we noted that
water was used in ponds and tanks throughout the hatchery and farming
stages. Third, due to inadequate FOP descriptions, certain material
inputs at the hatchery and farming stages are not easily identifiable
for the purpose of selecting surrogate values. When asked to provide a
detailed description for these material inputs, BIM Seafood only
provided a broad, general description. For instance, BIM Seafood's
first Section D response contains two FOPs described as ``enzymes.''
When asked in a supplemental response to provide the HTS classification
for these inputs such as these two items, BIM Seafood only provided a
broad 4-digit HTS number. At verification, BIM Seafood was unable to
provide additional information regarding the descriptions and more
specific HTS classifications for these and other inputs and we noted
that a more detailed level of specificity did not appear to be tracked
by BIM seafood's book and records. Because BIM Seafood could not
provide more detailed information regarding these and other inputs, the
Department is unable to determine appropriate surrogate values for
these inputs.
In the past, the Department has used an intermediate input
methodology when the accuracy of the normal value based on an
integrated FOP calculation would be sacrificed, (e.g., Fish Fillets
from Vietnam\4\ and Garlic from China\5\). In this case, because the
labor reported was not based on actual hours worked, water was
unreported, and the surrogate valuation of the inadequately described
hatchery and farming FOPs would be speculative at best, we have
determined to use an intermediate input methodology. As a result, we
will begin the normal value calculation at the processing stage and
apply a surrogate value for raw, head-on, shell-on shrimp.
---------------------------------------------------------------------------
\4\ See Notice of Preliminary Determination of Sales at Less
Than Fair Value, Affirmative Preliminary Determination of Critical
Circumstances and Postponement of Final Determination: Certain
Frozen Fish Fillets From the Socialist Republic of Vietnam, 68 FR
4986 (January 31, 2003), 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), and
accompanying Issues and Decision Memorandum at Comment 3.
\5\ See Fresh Garlic from the People's Republic of China: Final
Results of Antidumping Duty Administrative Review, 70 FR 34082 (June
13, 2005) and accompanying Issues and Decision Memorandum at Comment
1, Fresh Garlic from the People's Republic of China: Final Results
and Partial Rescission of Antidumping Duty Administrative Review and
Final Results of New Shipper Reviews, 71 FR 26329, 26330 (May 4,
2006), and accompanying Issues and Decision Memorandum, at Comment
1.
---------------------------------------------------------------------------
2. Factor Valuations
In accordance with section 773(c) of the Act, we calculated NV
based on FOPs reported by BIM Seafood during the POR. To calculate NV,
we multiplied the reported per-unit factor-consumption rates by
publicly available Bangladeshi surrogate values. In selecting the
surrogate values, we considered the quality, specificity, and
contemporaneity of the data. As appropriate, we adjusted input prices
by including freight costs to make them delivered prices. Specifically,
we added to Bangladeshi import surrogate values a surrogate freight
cost using the shorter of the reported distance from the domestic
supplier to the factory of production or the distance from the nearest
seaport to the factory of production where appropriate. This adjustment
is in accordance with the Court of Appeals for the Federal Circuit's
decision in Sigma Corp. v. United States, 117 F. 3d 1401, 1407-
[[Page 4928]]
1408 (Fed. Cir. 1997). Where we did not use Bangladeshi Import
Statistics, we calculated freight based on the reported distance from
the supplier to the factory.
It is the Department's practice to calculate price index adjustors
to inflate or deflate, as appropriate, surrogate values that are not
contemporaneous with the POR using the wholesale price index (``WPI'')
for the subject country. See Notice of Preliminary Determination of
Sales at Less Than Fair Value and Postponement of Final Determination:
Hand Trucks and Certain Parts Thereof from the People's Republic of
China, 69 FR 29509 (May 24, 2004). However, in this case, a WPI was not
available for Bangladesh. Therefore, where publicly available
information contemporaneous with the POI with which to value factors
could not be obtained, surrogate values were adjusted using the
Consumer Price Index rate for Bangladesh, or the WPI for India or
Indonesia (for certain surrogate values where Bangladeshi data could
not be obtained), as published in the International Financial
Statistics of the International Monetary Fund.
Bangladeshi and other surrogate values denominated in foreign
currencies were converted to USD using the applicable average exchange
rate based on exchange rate data from the Department's website.
For details regarding the surrogate values used to calculate NV,
see the Surrogate Values Memo.
Preliminary Results of the Review
The Department has determined that the following preliminary
dumping margins exist for the period February 1, 2007, through January
31, 2008:
Certain Frozen Warmwater Shrimp from Vietnam
------------------------------------------------------------------------
Weighted-
Manufacturer/Exporter Average Margin
(Percent)
------------------------------------------------------------------------
BIM Seafood Join Stock Company (BIM Seafood)........... 0.00
------------------------------------------------------------------------
Disclosure
The Department will disclose to parties of this proceeding the
calculations performed in reaching the preliminary results within five
days of the date of publication of this notice in accordance with 19
CFR 351.224(b).
Comments
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.\6\
---------------------------------------------------------------------------
\6\ 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 this new
shipper review, 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)(2)(B)(iv) 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.\7\
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.
---------------------------------------------------------------------------
\7\ 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 BIM Seafood 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 BIM Seafood, the cash deposit rate
is zero; (2) for subject merchandise exported by BIM Seafood but not
manufactured by BIM Seafood, the cash deposit rate will continue to be
the Vietnam-wide rate (i.e., 25.76 percent); and (3) for subject
merchandise manufactured by BIM Seafood, 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 Importers
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
[[Page 4929]]
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)(2)(B) and 777(i) of the Act, and 19 CFR 351.214(h) and
351.221(b)(4).
Dated: January 16, 2009.
Ronald K. Lorentzen,
Acting Assistant Secretary for Import Administration.
[FR Doc. E9-1711 Filed 1-27-09; 8:45 am]
BILLING CODE 3510-DS-S
