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 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