Certain Frozen Fish Fillets From the Socialist Republic of Vietnam: Notice of Preliminary Results of New Shipper Reviews and Fifth Antidumping Duty Administrative Review, 45805-45811 [E9-21429]
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Federal Register / Vol. 74, No. 171 / Friday, September 4, 2009 / Notices
Opportunity for Designation
(serviced by Northeast Indiana Grain
Inspection, Inc.).
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Omaha
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17:16 Sep 03, 2009
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Interested persons or governmental
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Authority: 7 U.S.C. 71–87k.
J. Dudley Butler,
Administrator, Grain Inspection, Packers and
Stockyards Administration.
[FR Doc. E9–21336 Filed 9–3–09; 8:45 am]
BILLING CODE 3410–KD–P
DEPARTMENT OF COMMERCE
International Trade Administration
[A–552–801]
Certain Frozen Fish Fillets From the
Socialist Republic of Vietnam: Notice
of Preliminary Results of New Shipper
Reviews and Fifth Antidumping Duty
Administrative Review
AGENCY: Import Administration,
International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce
(‘‘Department’’) is conducting new
shipper reviews and an administrative
review of the antidumping duty order
on certain frozen fish fillets from the
Socialist Republic of Vietnam
(‘‘Vietnam’’). See Notice of
Antidumping Duty Order: Certain
Frozen Fish Fillets From the Socialist
Republic of Vietnam, 68 FR 47909
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45805
(August 12, 2003) (‘‘Order’’). We
preliminarily find that QVD Food
Company Ltd. (‘‘QVD’’),1 Vinh Hoan
Corporation (‘‘Vinh Hoan’’), SaigonMekong Fishery Co. (‘‘SAMEFICO’’),
and Cadovimex II Seafood ImportExport & Processing Joint Stock
Company (‘‘Cadovimex II’’) did not sell
subject merchandise at less than normal
value (‘‘NV’’) during the period of
review (‘‘POR’’), August 1, 2007,
through July 31, 2008.
DATES: Effective Date: September 4,
2009.
FOR FURTHER INFORMATION CONTACT:
Alan Ray (QVD), Javier Barrientos (Vinh
Hoan), Alexis Polovina (SAMEFICO),
and Tim Lord (Cadovimex II) Office 9,
AD/CVD Operations, Import
Administration, International Trade
Administration, U.S. Department of
Commerce, 14th Street and Constitution
Avenue, NW., Washington, DC 20230;
telephone (202) 482–5403, (202) 482–
2243, (202) 482–3927, and (202) 482–
7425, respectively.
SUPPLEMENTARY INFORMATION:
Case History
On August 1, 2008, the Department
published a notice of an opportunity to
request an administrative review of the
order. See Antidumping or
Countervailing Duty Order, Finding, or
Suspended Investigation; Opportunity
To Request Administrative Review, 73
FR 44966 (August 1, 2008). By August
31, 2008, the Department received
review requests for 20 companies from
Petitioners 2 and certain individual
companies. In addition, pursuant to 19
CFR 351.214(c), the Department also
received new shipper review requests
from SAMEFICO and Cadovimex II on
August 8, 2008, and, August 24, 2008,
respectively.
On September 30, 2008, the
Department initiated an antidumping
1 The Department is treating QVD, QVD Dong
Thap Food Co., Ltd. (‘‘QVD DT’’), and Thuan Hung
Co., Ltd. (‘‘Thuan Hung’’) as a single entity in these
preliminary results. Similarly, the Department is
treating Vinh Hoan, Vinh Hoan USA Inc. (‘‘Vinh
Hoan USA’’), and Van Duc Food Export Joint Stock
Company (‘‘Van Duc’’) as a single entity. Section
351.401(f) of the Department’s regulations define
single entities as those affiliated producers who
have production facilities for similar or identical
products that would not require substantial
retooling of either facility in order to restructure
manufacturing priorities and the Secretary
concludes that there is a significant potential for the
manipulation of price or production. For further
analysis, see Affiliations section below.
2 The Catfish Farmers of America and individual
U.S. catfish processors, America’s Catch,
Consolidated Catfish Companies, LLC dba Country
Select Catfish, Delta Pride Catfish, Inc., Harvest
Select Catfish, Inc., Heartland Catfish Company,
Pride of the Pond, Simmons Farm Raised Catfish,
Inc., and Southern Pride Catfish Company LLC
(‘‘Petitioners’’).
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duty administrative review on frozen
fish fillets from Vietnam covering 20
companies. See Initiation of
Antidumping and Countervailing Duty
Administrative Reviews and Requests
for Revocation in Part (‘‘5th AR
Initiation’’), 73 FR 56795 (September 30,
2008).3
On October 1, 2008, the Department
initiated the new shipper reviews for
SAMEFICO and Cadovimex II. See
Certain Frozen Fish Fillets from the
Socialist Republic of Vietnam: Initiation
of New Shipper Reviews, 73 FR 57058
(October 1, 2008).
On October 29, 2008, the Department
issued a letter to all interested parties
informing them of its decision to select
QVD and Vinh Hoan, the two largest
exporters of subject merchandise during
the POR, as mandatory respondents
based on Customs and Border Protection
(‘‘CBP’’) import data for the fifth
administrative review. See
Memorandum to the File from Alexis
Polovina, Case Analyst, through Alex
Villanueva, Program Manager,
Antidumping Duty Administrative
Review of Frozen Fish Fillets from the
Socialist Republic of Vietnam: Selection
of Respondents for Individual Review
(‘‘Respondent Selection Memo’’), dated
October 29, 2008.
Between December 4, 2009, and June
23, 2009, QVD submitted responses to
the original sections A, C, and D
questionnaires and supplemental
sections A, C, and D questionnaires.
Between November 24, 2008, and June
10, 2009, Vinh Hoan submitted
responses to the original sections A, C,
and D questionnaires and supplemental
sections A, C, and D questionnaires.
In the new shipper reviews,
Cadovimex submitted responses to
questionnaires between November 4,
2008, and July 15, 2009. SAMEFICO
submitted responses to questionnaires
between December 31, 2008, and March
31, 2009.
On March 20, 2009, the Department
aligned the antidumping duty new
shipper and administrative reviews. On
April 23, 2009, the Department
extended the deadline for the
preliminary results of this review by 120
days, to August 31, 2009. See Certain
Frozen Fish Fillets from the Socialist
Republic of Vietnam: Extension of Time
Limit for Preliminary Results of the Fifth
Antidumping Duty Administrative
Review (‘‘Prelim Extension’’), 74 FR
18549 (April 23, 2009).
3 We note that the initiation notice contained 20
companies. However, two of those companies (Vinh
Hoan Co., Ltd. and Vinh Hoan Corporation) are the
same company, existing with the former name prior
to the POR and with the latter name during and
after the POR.
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17:16 Sep 03, 2009
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On April 30, 2009, the Department
rescinded the administrative review
with respect to 13 companies because
all requesting parties for those
companies withdrew their requests for
review in a timely manner. See Certain
Frozen Fish Fillets From the Socialist
Republic of Vietnam: Notice of Partial
Rescission of the Fifth Antidumping
Duty Administrative Review, 74 FR
19933 (April 30, 2009) (‘‘5th AR Partial
Rescission’’).4 Therefore, seven
companies remain in this administrative
review: East Sea Seafoods Joint Venture
Co., Ltd. (‘‘East Sea’’), the QVD single
entity, representing three affiliated and
collapsed companies, An Giang
Fisheries Import and Export Joint Stock
Company (‘‘Agifish’’ or ‘‘AnGiang
Fisheries Import and Export’’), Vinh
Hoan Corporation, and Vinh Hoan
Company, Ltd.
QVD’s Revocation Request
On August 29, 2008, in QVD’s request
for an administrative review, QVD
requested that the antidumping order be
revoked for QVD, pursuant to section
351.222(b)(2) of the Department’s
regulations. Section 351.222(b)(2)
permits, in relevant part, the
Department to revoke an order in part
with regard to a particular company if
that company has not sold the subject
merchandise at less than NV for a
period of at least three consecutive
years. QVD participated in the second,
third, and fourth administrative
reviews. QVD received a weightedaverage margin of 0.0 percent in the
second and third administrative
reviews, but received a weightedaverage margin of 0.52 percent in the
fourth administrative review. Because
QVD sold merchandise at less than NV
during the fourth administrative review,
it does not qualify for revocation under
the Department’s regulations.
Vietnam-Wide Entity
As discussed above, in this
administrative review we limited the
selection of respondents using CBP
import data. See Respondent Selection
Memo at 2. In this case, we made
available to the companies who were
not selected, the separate rates
4 Pursuant to 5th AR Partial Rescision, the
Department rescinded on the 13 following
companies: An Xuyen Co., Ltd.; Asia Commerce
Fisheries Joint Stock Company (aka Acomfish JSC);
Ben Tre Forestry Aquaproduct Import-Export
Company (aka FAQUIMEX); Binh An Seafood Joint
Stock Co.; Hiep Thanh Seafood Joint Stock Co.;
Hung Vuong Corporation; Nam Viet Company
Limited (aka NAVICO); Phuong Nam Co., Ltd.; Da
Nang Seaproducts Import-Export Corporation (aka
Da Nang or Seaprodex Danang); Southern Fishery
Industries Company, Ltd. (aka South Vina); Thien
Ma Seafood Co., Ltd.; Vinh Quang Fisheries
Corporation; and Anvifish Co., Ltd.
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Fmt 4703
Sfmt 4703
application and certification, which
were put on the Department’s Web site.
See 5th AR Initiation, dated September
30, 2008. Those companies which did
not apply for separate rates will
continue to be part of the Vietnam-wide
entity. Because the Department
determines preliminarily that there were
exports of merchandise under review
from Vietnam producers/exporters that
did not demonstrate their eligibility for
separate-rate status, the Vietnam-wide
entity is now under review.
Separate Rates
A designation as a non-market
economy (‘‘NME’’) remains in effect
until it is revoked by the Department.
See section 771(18)(C) of the Tariff Act
of 1930, as amended (‘‘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.
Although the Department has
previously assigned a separate rate to all
of the companies eligible for a separate
rate in the instant proceeding, it is the
Department’s policy to evaluate separate
rates questionnaire responses each time
a respondent makes a separate rates
claim, regardless of whether the
respondent received a separate rate in
the past. See Manganese Metal from the
People’s Republic of China, Final
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Results and Partial Rescission of
Antidumping Duty Administrative
Review, 63 FR 12440 (March 13, 1998).
In this review, Agifish, Vinh Hoan,
QVD, and East Sea 5 submitted complete
separate rates certifications and
applications. SAMEFICO and
Cadovimex II provided separate rate
information in their questionnaire
responses. The evidence submitted by
these companies includes government
laws and regulations on corporate
ownership, business licenses, and
narrative information regarding the
companies’ operations and selection of
management. The evidence provided by
these companies support a finding of a
de jure absence of government control
over their export activities, 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 this review, Agifish, Vinh Hoan,
QVD, SAMEFICO, Cadovimex II, and
East Sea submitted evidence indicating
an absence of de facto government
control over their export activities.
Specifically, this evidence indicates
that: (1) Each company sets its own
export prices independent of the
government and without the approval of
a government authority; (2) each
company retains the proceeds from its
sales and makes independent decisions
regarding the disposition of profits or
financing of losses; (3) each company
has a general manager, branch manager
or division manager with the authority
to negotiate and bind the company in an
agreement; (4) the general managers are
selected by the board of directors or
5 East Sea addressed the separate rates section of
the Department’s questionnaire in its November 25,
2008, submission as the certification it had
submitted was no longer valid given that there had
been a change in ownership and in name.
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company employees, and the general
managers appoint the deputy managers
and the manager of each department;
and (5) there is no restriction on any of
the companies’ use of export revenues.
Therefore, the Department preliminarily
finds that Agifish, Vinh Hoan, QVD, and
East Sea have established prima facie
that they qualify for separate rates under
the criteria established by Silicon
Carbide and Sparklers.
Rate for Non-Selected Companies
In this review there are two
companies that were not selected for
individual examination, East Sea and
Agifish. The statute and the
Department’s regulations do not address
the establishment of a rate to be applied
to individual companies not selected for
examination where the Department
limited its examination in an
administrative review pursuant to
section 777A(c)(2) of the Act. Generally
we have looked to section 735(c)(5) of
the Act, which provides instructions for
calculating the all-others rate in an
investigation, for guidance when
calculating the rate for respondents we
did not examine in an administrative
review. Section 735(c)(5)(A) of the Act
instructs that we are not to calculate an
all-others rate using any zero or de
minimis margins or any margins based
entirely on facts available. Accordingly,
the Department’s practice in this regard,
in reviews involving limited respondent
selection based on exporters accounting
for the largest volumes of trade, has
been to average the rates for the selected
companies, excluding zero and de
minimis rates and rates based entirely
on facts available. See Certain Frozen
Warmwater Shrimp From the Socialist
Republic of Vietnam: Final Results and
Final Partial Rescission of Antidumping
Duty Administrative Review, 73 FR
52273, 52275 (September 9, 2008) and
accompanying Issues and Decision
Memorandum at Comment 6 (‘‘Shrimp
from Vietnam I & D’’). Section
735(c)(5)(B) of the Act also provides
that, where all margins are zero, de
minimis, or based entirely on facts
available, we may use ‘‘any reasonable
method’’ for assigning the rate to nonselected respondents, including
‘‘averaging the estimated weighted
average dumping margins determined
for the exporters and producers
individually investigated.’’
In this case, the rates for both
individually examined respondents are
de minimis and accordingly, the
Department will determine a reasonable
method for assigning a rate to East Sea
and Agifish. The Department has
available in administrative reviews
information that would not be available
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in an investigation, namely rates from
prior administrative and new shipper
reviews. Accordingly, since the
determination in the investigation in
this proceeding, the Department has
determined that in cases where we have
found dumping margins in previous
segments of a proceeding, a reasonable
method for determining the rate for nonselected companies is to use the most
recent rate calculated for the nonselected company in question unless we
calculated in a more recent review a rate
for any company that was not zero, de
minimis or based entirely on facts
available. See Shrimp from Vietnam I &
D at Comment 6; Ball Bearings and Parts
Thereof from France, Germany, Italy,
Japan, and the United Kingdom: Final
Results of Antidumping Duty
Administrative Reviews and Rescission
of Review in Part, 73 FR 52823, 52824
(September 11, 2008) and accompanying
Issues and Decision Memorandum at
Comment 6; Certain Fish Fillets from
the Socialist Republic of Vietnam:
Notice of Preliminary Results of the New
Shipper Review and Fourth
Antidumping Duty Administrative
Review and Partial Rescission of the
Fourth Administrative Review, 73 FR
52015 (September 8, 2008) (changed in
final results as final calculated rate for
mandatory respondent was above de
minimis, which remained unchanged in
the amended final results); see also
Certain Polyester Staple Fiber From the
People’s Republic of China: Notice of
Preliminary Results of the Antidumping
Duty Administrative Review and
Extension of Time Limits for the Final
Results, 74 FR 32125 (July 7, 2009).
Agifish recently received an assigned
non-de minimis per-unit rate of $0.02
per kilogram in an antidumping duty
new shipper and administrative
review.6 See Notice of Amended Final
Results of Antidumping Duty
Administrative Review: Certain Frozen
Fish Fillets from Vietnam (‘‘4th AR
Final’’), 74 FR 17816 (April 17, 2009).
We have assigned a non-selected
separate rate of $0.02 per kilogram for
Agifish and East Sea for the purposes of
these preliminary results, as it is the
assigned rate from the most recently
completed segment of the proceeding
that is above de minimis and not based
on adverse facts available (‘‘AFA’’). The
$0.02 per kilogram is a non-de minimis
per unit rate. For the Vietnam-wide
entity, we have assigned the entity’s
current rate and only rate ever
determined for the entity in this
proceeding, which is $2.11 per
6 The rate assigned for Agifish was, in ad valorem
terms, above de minimis.
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kilogram, which is a non-de minimis
per-unit rate.
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Verification
Pursuant to 19 CFR 351.307(b)(iv), we
conducted verification of the sales and
factors of production (‘‘FOP’’) for
SAMEFICO between April 13–15, 2009,
in Tra Vinh City Vietnam. See
Memorandum to the File from Alexis
Polovina and Timothy Lord, Case
Analysts through Alex Villanueva,
Program Manager, Verification of the
Sales and Processing Response of
Saigon-Mekong Fishery Co., Ltd.
(‘‘SAMEFICO’’) in the Antidumping
New Shipper Review of Certain Frozen
Fish Fillets from the Socialist Republic
of Vietnam (‘‘Vietnam’’), dated June 30,
2009 (‘‘SAMEFICO Verification
Report’’). We conducted a verification of
the sales and FOP for Vinh Hoan
between June 22 and July 1, 2009 in Cao
Lanh, Dong Thap Province and in Ho
Chi Minh City Vietnam. See
Memorandum to the File from Javier
Barrientos and Alan Ray, Senior and
Case Analysts, through Alex Villanueva,
Program Manager, Verification of the
Sales and Processing Response of Vinh
Hoan Co., Ltd/Corp. (‘‘Vinh Hoan’’) in
the Antidumping Duty New Shipper
and Administrative Reviews of Certain
Frozen Fish Fillets from the Socialist
Republic of Vietnam (‘‘Vietnam’’), dated
August 28, 2009 (‘‘Vinh Hoan
Verification Report’’).
Scope of the Order
The product covered by this Order is
frozen fish fillets, including regular,
shank, and strip fillets and portions
thereof, whether or not breaded or
marinated, of the species Pangasius
Bocourti, Pangasius Hypophthalmus
(also known as Pangasius Pangasius),
and Pangasius Micronemus. Frozen fish
fillets are lengthwise cuts of whole fish.
The fillet products covered by the scope
include boneless fillets with the belly
flap intact (‘‘regular’’ fillets), boneless
fillets with the belly flap removed
(‘‘shank’’ fillets), boneless shank fillets
cut into strips (‘‘fillet strips/finger’’),
which include fillets cut into strips,
chunks, blocks, skewers, or any other
shape. Specifically excluded from the
scope are frozen whole fish (whether or
not dressed), frozen steaks, and frozen
belly-flap nuggets. Frozen whole
dressed fish are deheaded, skinned, and
eviscerated. Steaks are bone-in, crosssection cuts of dressed fish. Nuggets are
the belly-flaps. The subject merchandise
will be hereinafter referred to as frozen
‘‘basa’’ and ‘‘tra’’ fillets, which are the
Vietnamese common names for these
species of fish. These products are
classifiable under tariff article codes
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1604.19.4000, 1604.19.5000,
0305.59.4000, 0304.29.6033 (Frozen
Fish Fillets of the species Pangasius
including basa and tra) of the
Harmonized Tariff Schedule of the
United States (‘‘HTSUS’’).7 This Order
covers all frozen fish fillets meeting the
above specification, regardless of tariff
classification. Although the HTSUS
subheading is provided for convenience
and customs purposes, our written
description of the scope of the Order is
dispositive.
Non-Market Economy Country Status
In every case conducted by the
Department involving Vietnam, Vietnam
has been treated as a non-market
economy (‘‘NME’’) country. In
accordance with section 771(18)(C)(i) of
the Act (‘‘the Act’’), any determination
that a foreign country is an NME
country shall remain in effect until
revoked by the administering authority.
See Notice of Final Results of
Administrative Review: Certain Frozen
Fish Fillets from the Socialist Republic
of Vietnam, 73 FR 15479 (March 17,
2008) and accompanying Issues and
Decision Memorandum (‘‘3rd AR Final
Results’’). None of the parties to this
proceeding have contested such
treatment. Accordingly, we calculated
NV in accordance with section 773(c) of
the Act, which applies to NME
countries.
Surrogate Country and Surrogate
Values
On April 2, 2009, the Department sent
interested parties a letter setting a
deadline to submit comments on
surrogate country selection and
information pertaining to valuing factors
of production (‘‘FOP’’). QVD,
Cadovimex II, SAMEFICO, and
Petitioners submitted surrogate country
comments and surrogate value data on
April 20, 2009. On April 30, 2009,
Respondents submitted a rebuttal to
Petitioners’ comments. On August 10,
2009, Respondents reiterated their April
20 and April 30, 2009, comments.
Surrogate Country
When the Department is investigating
imports from an NME country, section
773(c)(1) of the Act directs it to base NV,
in most circumstances, on the NME
producer’s FOPs, valued in a surrogate
market economy country or countries
7 Until July 1, 2004, these products were
classifiable under tariff article codes 0304.20.60.30
(Frozen Catfish Fillets), 0304.20.60.96 (Frozen Fish
Fillets, NESOI), 0304.20.60.43 (Frozen Freshwater
Fish Fillets) and 0304.20.60.57 (Frozen Sole Fillets)
of the HTSUS. Until February 1, 2007, these
products were classifiable under tariff article code
0304.20.60.33 (Frozen Fish Fillets of the species
Pangasius including basa and tra) of the HTSUS.
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considered to be appropriate by the
Department. In accordance with section
773(c)(4) of the Act, in valuing the
FOPs, the Department shall utilize, to
the extent possible, the prices or costs
of FOPs in one or more market economy
countries that are: (1) At a level of
economic development comparable to
that of the NME country; and (2)
significant producers of comparable
merchandise. The sources of the
surrogate factor values are discussed
under the ‘‘Normal Value’’ section
below and in the Memorandum to the
File through Alex Villanueva, Program
Manager, Office 9, from Alexis Polovina,
Case Analyst, dated August 27, 2009.
The Department determined that
Bangladesh, Pakistan, India, Indonesia,
the Philippines, and Sri Lanka are
countries comparable to Vietnam in
terms of economic development.8 Once
it has identified economically
comparable countries, the Department’s
practice is to select an appropriate
surrogate country from the list based on
the availability and reliability of data
from the countries. See Department
Policy Bulletin No. 04.1: Non-Market
Economy Surrogate Country Selection
Process (March 1, 2004).
In this case, we have found that
Bangladesh is a significant producer of
comparable merchandise. We find
Bangladesh to be a reliable source for
surrogate values because Bangladesh is
at a similar level of economic
development pursuant to section
773(c)(4) of the Act, is a significant
producer of comparable merchandise,
and has more complete publicly
available and reliable data. Thus, we
have selected Bangladesh as the primary
surrogate country for this administrative
review. However, in certain instances
where Bangladeshi data was not
available, we looked to see if Philippine
data was available, and if not, we used
data from Indian or Indonesian sources.
For a more complete explanation of the
surrogate country selection, see
Memorandum to the File, through James
C. Doyle, Office 9 Director, through Alex
Villanueva, Office 9 Program Manager,
from Timothy Lord, Office 9 Case
Analyst, dated August 28, 2009, Fifth
Antidumping Duty Administrative
Review and Aligned Fourth New
Shipper Review of Certain Frozen Fish
Fillets from the Socialist Republic of
8 See Memorandum from Kelly Parkhill, Acting
Director of Office of Policy, to Alex Villanueva,
Program Manager, China/NME Group, Office 9:
Antidumping Duty Administrative Review of
Certain Frozen Fish Fillets from the Socialist
Republic of Vietnam (Vietnam): Request for a List
of Surrogate Countries (‘‘Surrogate Country List’’)
(January 15, 2009).
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srobinson on DSKHWCL6B1PROD with NOTICES
Vietnam: Selection of a Surrogate
Country (‘‘Surrogate Value Memo’’).
In accordance with 19 CFR
351.301(c)(3)(ii), for the final results in
an antidumping administrative review,
interested parties may submit publicly
available information to value FOPs
within 20 days after the date of
publication of these preliminary results.
Affiliations
Section 771 (33) of the Act provides
that:
The following persons shall be
considered to be ‘affiliated’ or ‘affiliated
persons’:
(A) Members of a family, including
brothers and sisters (whether by the
whole or half blood), spouse, ancestors,
and lineal descendants;
(B) Any officer of director of an
organization and such organization;
(C) Partners;
(D) Employer and employee;
(E) Any person directly or indirectly
owning, controlling, or holding with
power to vote, 5 percent or more of the
outstanding voting stock or shares of
any organization and such organization;
(F) Two or more persons directly or
indirectly controlling, controlled by, or
under common control with, any
person;
(G) Any person who controls any
other person and such other person.
Additionally, section 771(33) of the
Act stipulates that: ‘‘For purposes of this
paragraph, a person shall be considered
to control another person if the person
is legally or operationally in a position
to exercise restrain or direction over the
other person.’’
In the final results of the third
antidumping duty administrative
review, the Department determined that
QVD Choi Moi Farming Cooperative
(‘‘QVD Choi Moi’’) would no longer be
collapsed with QVD, QVD DT, and
Thuan Hung, pursuat to sections
771(33)(A), (B), (E), (F), and (G) of the
Act and 19 CFR 351.401(f). See
Memorandum to David M. Spooner,
Assistant Secretary for Import
Administration, from Stephen J. Claeys,
Deputy Assistant Secretary: Issues and
Decision Memorandum for the Final
Results of the Administrative Review:
Certain Frozen Fish Fillets from the
Socialist Republic of Vietnam
(‘‘Vietnam’’) (‘‘3rd I & D’’) (March 17,
2008). The Department also determined
that QVD USA is affiliated with QVD,
QVD Dong Thap, and Thuan Hung
pursuant to sections 771(33)(A), (B), (E),
(F), and (G) of the Act. Therefore, the
Department determined to calculate a
constructed export price (‘‘CEP’’)
through QVD USA to its first
unaffiliated U.S. customer. See 3rd I &
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17:16 Sep 03, 2009
Jkt 217001
45809
where appropriate, to NV, as described
below.
D at Comment 5. The Department also
determined that Beaver Street Fisheries
(‘‘BSF’’) and QVD USA were not
affiliated. See Id.
In QVD’s Section A Questionnaire
Response, it stated that during the POR
‘‘the QVD shareholders sold the land
and all shareholdings in QVD Choi Moi
on May 4, 2008.’’ See QVD’s December
4, 2008, Section A Questionnaire at 3.
Therefore, based on the record evidence
in this review we find find QVD Choi
Moi is no longer affiliated with QVD
entities as of May 4, 2008.
For these preliminary results, based
on the information on the record of this
proceeding, the Department continues
to find that QVD, QVD DT, and Thuan
Hung should be collapsed and treated as
a single entity. See 3rd I & D at
Comment 5. Similarly, for these
preliminary results, based on the
information on the record of this
proceeding, the Department continues
to find that QVD and QVD USA are
affiliated pursuant to sections
771(33)(A), (B), (E), (F), and (G) of the
Act. For these preliminary results, we
also continue to find that BSF and QVD
USA are not affiliated.
Based on evidence submitted by Vinh
Hoan and explained at verification, we
preliminarily find that Vinh Hoan is
affiliated Vinh Hoan 1 Feed Joint Stock
Company (‘‘Vinh Hoan Feed’’) and Van
Duc, pursuant to section 771(33) of the
Act. Because much of the facts
underlying this determination are
business proprietary, for a detailed
discussion of affiliations, please see
Vinh Hoan Verification Report at pages
4–8 and 15–18. In addition, based on
evidence found at verification of Vinh
Hoan, we preliminarily find that Vinh
Hoan, and Van Duc, but not Vinh Hoan
Feed, should be treated as a single entity
for purposes of this new shipper review.
See 19 CFR 351.401(f)(1).
Also based on evidence submitted by
Vinh Hoan and explained at
verification, we preliminarily find that
Vinh Hoan is affiliated Vinh Hoan USA,
pursuant to section 771(33) of the Act.
Id.
Based on evidence submitted by
Cadovimex II in their questionnaire
responses, we preliminarily find that
Cadovimex II is affiliated with
Oceanwide Seafood, LLC
(‘‘Oceanwide’’), pursuant to section
771(33) of the Act. Id.
U.S. Price
For SAMEFICO’s and Vinh Hoan’s EP
sales, we used the EP methodology,
pursuant to section 772(a) of the Act,
because the first sale to an unaffiliated
purchaser was made prior to
importation and CEP was not otherwise
warranted by the facts on the record. We
calculated EP based on the Free-onboard foreign port price to the first
unaffiliated purchaser in the United
States. For the EP sales, we also
deducted foreign inland freight, foreign
cold storage, and international ocean
freight from the starting price (or gross
unit price), in accordance with section
772(c) of the Act.
In accordance with section 772(b) of
the Act, we used the CEP methodology
when the first sale to an unaffiliated
purchaser occurred after importation of
the merchandise into the United States.
In this instance, we calculated CEP for
all of QVD’s, Cadovimex II’s, and Vinh
Hoan’s U.S. sales through their
respective U.S. affiliates, QVD USA,
Oceanwide, and Vinh Hoan USA to
unaffiliated customers.
For QVD’s, Cadovimex II’s, and Vinh
Hoan’s CEP sales, we made adjustments
to the gross unit price for billing
adjustments, rebates, foreign inland
freight, international freight, foreign
cold storage, U.S. marine insurance,
U.S. inland freight, U.S. warehousing,
U.S. inland insurance, other U.S.
transportation expenses, and U.S.
customs duties. In accordance with
section 772(d)(1) of the Act, we also
deducted those selling expenses
associated with economic activities
occurring in the United States,
including commissions, credit expenses,
advertising expenses, indirect selling
expenses, inventory carrying costs, and
U.S. re-packing costs. We also made an
adjustment for profit in accordance with
section 772(d)(3) of the Act.
Where movement expenses were
provided by NME-service providers or
paid for in NME currency, we valued
these services using either Bangladeshi
or Indian surrogate values. See
Surrogate Value Memo. Where
applicable, we used the actual reported
expense for those movement expenses
provided by ME suppliers and paid for
in ME currency.
Fair Value Comparisons
To determine whether sales of the
subject merchandise made by QVD,
Vinh Hoan, SAMEFICO or Cadovimex II
to the United States were at prices
below NV, we compared each
company’s export price (‘‘EP’’) or CEP,
Bona Fide New Shipper Analysis
Consistent with the Department’s
practice, we investigated the bona fide
nature of the sales made by SAMEFICO
and Cadovimex II for the new shipper
review. In evaluating whether a sale is
bona fide, the Department considers,
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inter alia, such factors as: (1) The timing
of the sale; (2) the price and quantity; (3)
the expenses arising from the
transaction; (4) whether the goods were
resold at a profit; and (5) whether the
transaction was made on an arms-length
basis. We preliminarily find that the
new shipper sales made by SAMEFICO
and Cadovimex II are bona fide
transactions. See Memo to the File
Through Alex Villanueva, Program
Manager, Office 9 from Alexis Polovina,
Case Analyst: Antidumping Duty New
Shipper Review of Certain Frozen Fish
Fillets from the Socialist Republic of
Vietnam: Bona Fide Nature of the Sale
Under Review for Saigon-Mekong
Fishery Co., Ltd. and Memo to the File
Through Alex Villanueva, Program
Manager, Office 9 from Tim Lord, Case
Analyst: Antidumping Duty New
Shipper Review of Certain Frozen Fish
Fillets from the Socialist Republic of
Vietnam: Bona Fide Nature of the Sale
Under Review for Cadovimex II Seafood
Import-Export & Processing Joint Stock
Company, dated August 27, 2009. Based
on our investigation into the bona fide
nature of the sales, the questionnaire
responses submitted by SAMEFICO and
Cadovimex, as well the companies’
eligibility for a separate rate (see
‘‘Separate Rates’’ section above), and the
Department’s preliminary determination
that SAMEFICO and Cadovimex II were
not affiliated with any exporter or
producer that had previously shipped
subject merchandise to the United
States, we preliminarily determine that
SAMEFICO and Cadovimex II have met
the requirements to qualify as new
shippers during the POR. Therefore, for
purposes of these preliminary results of
review, we are treating SAMEFICO’s
and Cadovimex II’s respective sales of
subject merchandise to the United
States as appropriate transactions for
this new shipper review. We will
continue to evaluate all aspects of
SAMEFICO’s and Cadovimex II’s sales
during the final results.
srobinson on DSKHWCL6B1PROD with NOTICES
Normal Value
Section 773(c)(1) of the Act provides
that, in the case of an NME, the
Department shall determine NV using
an FOP methodology if the merchandise
is exported from an NME and the
information does not permit the
calculation of NV using home-market
prices, third-country prices, or
constructed value under section 773(a)
of the Act. Because information on the
record does not permit the calculation
of NV using home-market prices, thirdcountry prices, or constructed value and
no party has argued otherwise, we
VerDate Nov<24>2008
18:45 Sep 03, 2009
Jkt 217001
calculated NV based on FOPs reported
by QVD, Vinh Hoan, SAMEFICO, and
Cadovimex II, pursuant to sections
773(c)(3) and (4) of the Act and 19 CFR
351.408(c).
As the basis for NV, QVD, Vinh Hoan,
SAMEFICO, and Cadovimex II provided
FOPs used in each of the stages for
processing frozen fish fillets. Our
general policy, consistent with section
773(c)(1)(B) of the Act, is to value the
FOPs that a respondent uses to produce
the subject merchandise.
To calculate NV, we valued QVD’s,
Vinh Hoan’s, SAMEFICO’s, and
Cadovimex II’s reported per-unit factor
quantities using publicly available
Bangladeshi, Philippine, Indian, and
Indonesian surrogate values. Bangladesh
was our first surrogate country source
from which to obtain data to value
inputs, and when data was not available
from there, we used Philippine, Indian,
or Indonesian sources. In selecting
surrogate values, we considered the
quality, specificity, and
contemporaneity of the available values.
As appropriate, we adjusted the value of
material inputs to account for delivery
costs. Specifically, we added surrogate
freight costs to surrogate values using
the reported distances from the Vietnam
port to the Vietnam factory or from the
domestic supplier to the factory, where
appropriate. This adjustment is in
accordance with the decision of the
CAFC in Sigma Corp. v. United States,
117 F.3d 1401, 1407–1408 (Fed. Cir.
1997).
For those values not
contemporaneous with the POR, we
adjusted for inflation using data
published in the International Monetary
Fund’s International Financial
Statistics. Import data from South
Korea, Thailand and Indonesia were
excluded from the surrogate country
import data due to generally available
export subsidies. See China Nat’l Mach.
Import & Export Corp. v. United States,
CIT 01–1114, 293 F. Supp. 2d 1334 (CIT
2003), aff’d 104 Fed. Appx. 183 (Fed.
Cir. 2004), and Certain Cut-to-Length
Carbon Steel Plate from Romania:
Notice of Final Results and Final Partial
Rescission of Antidumping Duty
Administrative Review, 70 FR 12651,
and accompanying issues and Decision
Memorandum at Comment 4 (March 15,
2005). Additionally, we excluded prices
from NME countries and imports that
were labeled as originating from an
‘‘unspecified’’ Asian country. The
Department excluded these imports
because it could not ascertain whether
they were from either an NME country
or a country with general export
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Sfmt 4703
subsidies. We converted the surrogate
values to U.S. dollars as appropriate,
using the official exchange rate recorded
on the dates of sale of subject
merchandise in this case, obtained from
https://www.ia.ita.doc.gov/exchange/
index.html. For further detail, see
Surrogate Values Memo.
Preliminary Results of the Review
As a result of our review, we
preliminarily find that the following
margins exist for the period August 1,
2007, through July 31, 2008:
CERTAIN FROZEN FISH FILLETS FROM
VIETNAM
Manufacturer/exporter
QVD 9 ................................
Vinh Hoan .........................
Agifish ...............................
SAMEFICO .......................
Cadovimex II .....................
East Sea ...........................
Vietnam-wide Entity ..........
Weightedaverage margin
(dollars
per kilogram)
0.00
0.00
0.02
0.00
0.00
0.02
2.11
Public Comment
The Department will disclose to
parties of this proceeding the
calculations performed in reaching the
preliminary results within ten days of
the date of announcement of the
preliminary results. An interested party
may request a hearing within 30 days of
publication of the preliminary results.
See 19 CFR 351.310(c). Interested
parties may submit written comments
(case briefs) within 30 days of
publication of the preliminary results
and rebuttal comments (rebuttal briefs),
which must be limited to issues raised
in the case briefs, within five days after
the time limit for filing case briefs. See
19 CFR 351.309(c)(1)(ii) and 19 CFR
351.309(d). Parties who submit
arguments are requested to submit with
the argument: (1) A statement of the
issue; (2) a brief summary of the
argument; and (3) a table of authorities.
Further, the Department requests that
parties submitting written comments
provide the Department with a diskette
containing the public version of those
comments. Unless the deadline is
extended pursuant to section
751(a)(3)(A) of the Act, the Department
will issue the final results of this
9 This rate is applicable to the QVD Single Entity
which includes QVD, QVD DT, and Thuan Hung.
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administrative review, including the
results of our analysis of the issues
raised by the parties in their comments,
within 120 days of publication of the
preliminary results. The assessment of
antidumping duties on entries of
merchandise covered by this review and
future deposits of estimated duties shall
be based on the final results of this
review.
Assessment Rates
Upon completion of this
administrative review, pursuant to 19
CFR 351.212(b), the Department will
calculate an assessment rate on all
appropriate entries. For the mandatory
respondents, QVD and Vinh Hoan, and
new shippers, SAMEFICO and
Cadovimex II, we will calculate
importer-specific duty assessment rates
on a per-unit basis.10 Where the
assessment rate is de minimis, we will
instruct CBP to assess no duties on all
entries of subject merchandise by that
importer. We will instruct CBP to
liquidate entries containing
merchandise from the PRC-wide entity
at the PRC-wide rate we determine in
the final results of review. We will issue
assessment instructions to CBP 15 days
after the date of publication of the final
results of review.
srobinson on DSKHWCL6B1PROD with NOTICES
Cash Deposit Requirements
The following cash deposit
requirements will be effective upon
publication of the final results of this
administrative review for all shipments
of the subject merchandise 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 the
exporters listed above, except for
Cadovimex II and SAMEFICO, the cash
deposit rate will be that established in
the final results of this review (except,
if the rate is zero or de minimis, the cash
deposit will be zero); (2) for previously
investigated or reviewed Vietnam and
non-Vietnam exporters not listed above
that have separate rates, the cash
deposit rate will continue to be the
exporter-specific rate published for the
most recent period; (3) for all Vietnam
exporters of subject merchandise which
have not been found to be entitled to a
separate rate, the cash deposit rate will
be the Vietnam-wide rate of $2.11 per
10 We divided the total dumping margins
(calculated as the difference between NV and EP or
CEP) for each importer by the total quantity of
subject merchandise sold to that importer during
the POR to calculate a per-unit assessment amount.
We will direct CBP to assess importer-specific
assessment rates based on the resulting per-unit
(i.e., per-kilogram) rates by the weight in kilograms
of each entry of the subject merchandise during the
POR.
VerDate Nov<24>2008
18:45 Sep 03, 2009
Jkt 217001
kilogram; and (4) for all non-Vietnam
exporters of subject merchandise which
have not received their own rate, the
cash deposit rate will be the rate
applicable to the Vietnam exporters that
supplied that non-Vietnam exporter.
These deposit requirements, when
imposed, shall remain in effect until
further notice.
The following cash deposit
requirements will be effective upon
publication of the final results of this
review for all shipments of subject
merchandise from new shippers
Cadovimex II or SAMEFICO 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
Cadovimex II or produced and exported
by SAMEFICO, the cash deposit rate
will be zero; (2) for subject merchandise
exported by Cadovimex II or SAMEFICO
but not manufactured by Cadovimex II
or SAMEFICO, the cash deposit rate will
continue to be the Vietnam-wide rate
(i.e., $2.11 per kilogram); and (3) for
subject merchandise manufactured by
Cadovimex II or SAMEFICO, 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 producerexporter combinations. These cash
deposit requirements, when imposed,
shall remain in effect until further
notice.
Notification to Interested Parties
This notice serves as a preliminary
reminder to importers of their
responsibility under 19 CFR
351.402(f)(2) to file a certificate
regarding the reimbursement of
antidumping duties prior to liquidation
of the relevant entries during this POR.
Failure to comply with this requirement
could result in the Secretary’s
presumption that reimbursement of
antidumping duties occurred and the
subsequent assessment of double
antidumping duties.
We are issuing and publishing this
determination in accordance with
sections 751(a)(1) and 777(i)(1) of the
Act.
Dated: August 28, 2009.
Ronald K. Lorentzen,
Acting Assistant Secretary for Import
Administration.
[FR Doc. E9–21429 Filed 9–3–09; 8:45 am]
BILLING CODE 3510–DS–P
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45811
DEPARTMENT OF COMMERCE
International Trade Administration
(C–552–805)
Polyethylene Retail Carrier Bags from
the Socialist Republic of Vietnam:
Preliminary Affirmative Countervailing
Duty Determination and Alignment of
Final Countervailing Duty
Determination with Final Antidumping
Duty Determination
AGENCY: Import Administration,
International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce
(the Department) preliminarily
determines that countervailable
subsidies are being provided to
producers and exporters of polyethylene
retail carrier bags (PRCBs) from the
Socialist Republic of Vietnam
(Vietnam). For information on the
estimated subsidy rates, see the
‘‘Suspension of Liquidation’’ section of
this notice. This notice also serves to
align the final countervailing duty
(CVD) determination in this
investigation with the final
determination in the companion
antidumping duty (AD) investigation of
PRCBs from Vietnam.
EFFECTIVE DATE: September 4, 2009.
FOR FURTHER INFORMATION CONTACT: Jun
Jack Zhao or Gene Calvert, AD/CVD
Operations, Office 6, Import
Administration, International Trade
Administration, U.S. Department of
Commerce, 14th Street and Constitution
Avenue, NW, Washington, DC 20230;
telephone: (202) 482–1396 and (202)
482–3586, respectively.
SUPPLEMENTARY INFORMATION:
Case History
The following events have occurred
since the April 20, 2009 initiation of
this investigation. See Polyethylene
Retail Carrier Bags From the Socialist
Republic of Vietnam: Initiation of
Countervailing Duty Investigation and
Request for Public Comment on the
Application of the Countervailing Duty
Law to Imports From the Socialist
Republic of Vietnam, 74 FR 19064
(April 27, 2009) (Initiation Notice).
On April 21, 2009, the Department
met with officials of the government of
Vietnam (GOV) to provide an overview
of the procedures and timetable of the
investigation. See Memorandum to
Barbara E. Tillman, Director, AD/CVD
Operations, Office 6, ‘‘Meeting with the
Government of Socialist Republic of
Vietnam (GOV): Countervailing Duty
Investigation of Polyethylene Retail
Carrier Bags from the Socialist Republic
E:\FR\FM\04SEN1.SGM
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]]>Agencies
[Federal Register Volume 74, Number 171 (Friday, September 4, 2009)]
[Notices]
[Pages 45805-45811]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-21429]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
[A-552-801]
Certain Frozen Fish Fillets From the Socialist Republic of
Vietnam: Notice of Preliminary Results of New Shipper Reviews and Fifth
Antidumping Duty Administrative Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce (``Department'') is conducting new
shipper reviews and an administrative review of the antidumping duty
order on certain frozen fish fillets from the Socialist Republic of
Vietnam (``Vietnam''). See Notice of Antidumping Duty Order: Certain
Frozen Fish Fillets From the Socialist Republic of Vietnam, 68 FR 47909
(August 12, 2003) (``Order''). We preliminarily find that QVD Food
Company Ltd. (``QVD''),\1\ Vinh Hoan Corporation (``Vinh Hoan''),
Saigon-Mekong Fishery Co. (``SAMEFICO''), and Cadovimex II Seafood
Import-Export & Processing Joint Stock Company (``Cadovimex II'') did
not sell subject merchandise at less than normal value (``NV'') during
the period of review (``POR''), August 1, 2007, through July 31, 2008.
---------------------------------------------------------------------------
\1\ The Department is treating QVD, QVD Dong Thap Food Co., Ltd.
(``QVD DT''), and Thuan Hung Co., Ltd. (``Thuan Hung'') as a single
entity in these preliminary results. Similarly, the Department is
treating Vinh Hoan, Vinh Hoan USA Inc. (``Vinh Hoan USA''), and Van
Duc Food Export Joint Stock Company (``Van Duc'') as a single
entity. Section 351.401(f) of the Department's regulations define
single entities as those affiliated producers who have production
facilities for similar or identical products that would not require
substantial retooling of either facility in order to restructure
manufacturing priorities and the Secretary concludes that there is a
significant potential for the manipulation of price or production.
For further analysis, see Affiliations section below.
---------------------------------------------------------------------------
DATES: Effective Date: September 4, 2009.
FOR FURTHER INFORMATION CONTACT: Alan Ray (QVD), Javier Barrientos
(Vinh Hoan), Alexis Polovina (SAMEFICO), and Tim Lord (Cadovimex II)
Office 9, AD/CVD Operations, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW., Washington, DC 20230; telephone (202) 482-
5403, (202) 482-2243, (202) 482-3927, and (202) 482-7425, respectively.
SUPPLEMENTARY INFORMATION:
Case History
On August 1, 2008, the Department published a notice of an
opportunity to request an administrative review of the order. See
Antidumping or Countervailing Duty Order, Finding, or Suspended
Investigation; Opportunity To Request Administrative Review, 73 FR
44966 (August 1, 2008). By August 31, 2008, the Department received
review requests for 20 companies from Petitioners \2\ and certain
individual companies. In addition, pursuant to 19 CFR 351.214(c), the
Department also received new shipper review requests from SAMEFICO and
Cadovimex II on August 8, 2008, and, August 24, 2008, respectively.
---------------------------------------------------------------------------
\2\ The Catfish Farmers of America and individual U.S. catfish
processors, America's Catch, Consolidated Catfish Companies, LLC dba
Country Select Catfish, Delta Pride Catfish, Inc., Harvest Select
Catfish, Inc., Heartland Catfish Company, Pride of the Pond, Simmons
Farm Raised Catfish, Inc., and Southern Pride Catfish Company LLC
(``Petitioners'').
---------------------------------------------------------------------------
On September 30, 2008, the Department initiated an antidumping
[[Page 45806]]
duty administrative review on frozen fish fillets from Vietnam covering
20 companies. See Initiation of Antidumping and Countervailing Duty
Administrative Reviews and Requests for Revocation in Part (``5th AR
Initiation''), 73 FR 56795 (September 30, 2008).\3\
---------------------------------------------------------------------------
\3\ We note that the initiation notice contained 20 companies.
However, two of those companies (Vinh Hoan Co., Ltd. and Vinh Hoan
Corporation) are the same company, existing with the former name
prior to the POR and with the latter name during and after the POR.
---------------------------------------------------------------------------
On October 1, 2008, the Department initiated the new shipper
reviews for SAMEFICO and Cadovimex II. See Certain Frozen Fish Fillets
from the Socialist Republic of Vietnam: Initiation of New Shipper
Reviews, 73 FR 57058 (October 1, 2008).
On October 29, 2008, the Department issued a letter to all
interested parties informing them of its decision to select QVD and
Vinh Hoan, the two largest exporters of subject merchandise during the
POR, as mandatory respondents based on Customs and Border Protection
(``CBP'') import data for the fifth administrative review. See
Memorandum to the File from Alexis Polovina, Case Analyst, through Alex
Villanueva, Program Manager, Antidumping Duty Administrative Review of
Frozen Fish Fillets from the Socialist Republic of Vietnam: Selection
of Respondents for Individual Review (``Respondent Selection Memo''),
dated October 29, 2008.
Between December 4, 2009, and June 23, 2009, QVD submitted
responses to the original sections A, C, and D questionnaires and
supplemental sections A, C, and D questionnaires. Between November 24,
2008, and June 10, 2009, Vinh Hoan submitted responses to the original
sections A, C, and D questionnaires and supplemental sections A, C, and
D questionnaires.
In the new shipper reviews, Cadovimex submitted responses to
questionnaires between November 4, 2008, and July 15, 2009. SAMEFICO
submitted responses to questionnaires between December 31, 2008, and
March 31, 2009.
On March 20, 2009, the Department aligned the antidumping duty new
shipper and administrative reviews. On April 23, 2009, the Department
extended the deadline for the preliminary results of this review by 120
days, to August 31, 2009. See Certain Frozen Fish Fillets from the
Socialist Republic of Vietnam: Extension of Time Limit for Preliminary
Results of the Fifth Antidumping Duty Administrative Review (``Prelim
Extension''), 74 FR 18549 (April 23, 2009).
On April 30, 2009, the Department rescinded the administrative
review with respect to 13 companies because all requesting parties for
those companies withdrew their requests for review in a timely manner.
See Certain Frozen Fish Fillets From the Socialist Republic of Vietnam:
Notice of Partial Rescission of the Fifth Antidumping Duty
Administrative Review, 74 FR 19933 (April 30, 2009) (``5th AR Partial
Rescission'').\4\ Therefore, seven companies remain in this
administrative review: East Sea Seafoods Joint Venture Co., Ltd.
(``East Sea''), the QVD single entity, representing three affiliated
and collapsed companies, An Giang Fisheries Import and Export Joint
Stock Company (``Agifish'' or ``AnGiang Fisheries Import and Export''),
Vinh Hoan Corporation, and Vinh Hoan Company, Ltd.
---------------------------------------------------------------------------
\4\ Pursuant to 5th AR Partial Rescision, the Department
rescinded on the 13 following companies: An Xuyen Co., Ltd.; Asia
Commerce Fisheries Joint Stock Company (aka Acomfish JSC); Ben Tre
Forestry Aquaproduct Import-Export Company (aka FAQUIMEX); Binh An
Seafood Joint Stock Co.; Hiep Thanh Seafood Joint Stock Co.; Hung
Vuong Corporation; Nam Viet Company Limited (aka NAVICO); Phuong Nam
Co., Ltd.; Da Nang Seaproducts Import-Export Corporation (aka Da
Nang or Seaprodex Danang); Southern Fishery Industries Company, Ltd.
(aka South Vina); Thien Ma Seafood Co., Ltd.; Vinh Quang Fisheries
Corporation; and Anvifish Co., Ltd.
---------------------------------------------------------------------------
QVD's Revocation Request
On August 29, 2008, in QVD's request for an administrative review,
QVD requested that the antidumping order be revoked for QVD, pursuant
to section 351.222(b)(2) of the Department's regulations. Section
351.222(b)(2) permits, in relevant part, the Department to revoke an
order in part with regard to a particular company if that company has
not sold the subject merchandise at less than NV for a period of at
least three consecutive years. QVD participated in the second, third,
and fourth administrative reviews. QVD received a weighted- average
margin of 0.0 percent in the second and third administrative reviews,
but received a weighted-average margin of 0.52 percent in the fourth
administrative review. Because QVD sold merchandise at less than NV
during the fourth administrative review, it does not qualify for
revocation under the Department's regulations.
Vietnam-Wide Entity
As discussed above, in this administrative review we limited the
selection of respondents using CBP import data. See Respondent
Selection Memo at 2. In this case, we made available to the companies
who were not selected, the separate rates application and
certification, which were put on the Department's Web site. See 5th AR
Initiation, dated September 30, 2008. Those companies which did not
apply for separate rates will continue to be part of the Vietnam-wide
entity. Because the Department determines preliminarily that there were
exports of merchandise under review from Vietnam producers/exporters
that did not demonstrate their eligibility for separate-rate status,
the Vietnam-wide entity is now under review.
Separate Rates
A designation as a non-market economy (``NME'') remains in effect
until it is revoked by the Department. See section 771(18)(C) of the
Tariff Act of 1930, as amended (``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.
Although the Department has previously assigned a separate rate to
all of the companies eligible for a separate rate in the instant
proceeding, it is the Department's policy to evaluate separate rates
questionnaire responses each time a respondent makes a separate rates
claim, regardless of whether the respondent received a separate rate in
the past. See Manganese Metal from the People's Republic of China,
Final
[[Page 45807]]
Results and Partial Rescission of Antidumping Duty Administrative
Review, 63 FR 12440 (March 13, 1998).
In this review, Agifish, Vinh Hoan, QVD, and East Sea \5\ submitted
complete separate rates certifications and applications. SAMEFICO and
Cadovimex II provided separate rate information in their questionnaire
responses. The evidence submitted by these companies includes
government laws and regulations on corporate ownership, business
licenses, and narrative information regarding the companies' operations
and selection of management. The evidence provided by these companies
support a finding of a de jure absence of government control over their
export activities, 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.
---------------------------------------------------------------------------
\5\ East Sea addressed the separate rates section of the
Department's questionnaire in its November 25, 2008, submission as
the certification it had submitted was no longer valid given that
there had been a change in ownership and in name.
---------------------------------------------------------------------------
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 this review, Agifish, Vinh Hoan, QVD, SAMEFICO, Cadovimex II,
and East Sea submitted evidence indicating an absence of de facto
government control over their export activities. Specifically, this
evidence indicates that: (1) Each company sets its own export prices
independent of the government and without the approval of a government
authority; (2) each company retains the proceeds from its sales and
makes independent decisions regarding the disposition of profits or
financing of losses; (3) each company has a general manager, branch
manager or division manager with the authority to negotiate and bind
the company in an agreement; (4) the general managers are selected by
the board of directors or company employees, and the general managers
appoint the deputy managers and the manager of each department; and (5)
there is no restriction on any of the companies' use of export
revenues. Therefore, the Department preliminarily finds that Agifish,
Vinh Hoan, QVD, and East Sea have established prima facie that they
qualify for separate rates under the criteria established by Silicon
Carbide and Sparklers.
Rate for Non-Selected Companies
In this review there are two companies that were not selected for
individual examination, East Sea and Agifish. The statute and the
Department's regulations do not address the establishment of a rate to
be applied to individual companies not selected for examination where
the Department limited its examination in an administrative review
pursuant to section 777A(c)(2) of the Act. Generally we have looked to
section 735(c)(5) of the Act, which provides instructions for
calculating the all-others rate in an investigation, for guidance when
calculating the rate for respondents we did not examine in an
administrative review. Section 735(c)(5)(A) of the Act instructs that
we are not to calculate an all-others rate using any zero or de minimis
margins or any margins based entirely on facts available. Accordingly,
the Department's practice in this regard, in reviews involving limited
respondent selection based on exporters accounting for the largest
volumes of trade, has been to average the rates for the selected
companies, excluding zero and de minimis rates and rates based entirely
on facts available. See Certain Frozen Warmwater Shrimp From the
Socialist Republic of Vietnam: Final Results and Final Partial
Rescission of Antidumping Duty Administrative Review, 73 FR 52273,
52275 (September 9, 2008) and accompanying Issues and Decision
Memorandum at Comment 6 (``Shrimp from Vietnam I & D''). Section
735(c)(5)(B) of the Act also provides that, where all margins are zero,
de minimis, or based entirely on facts available, we may use ``any
reasonable method'' for assigning the rate to non-selected respondents,
including ``averaging the estimated weighted average dumping margins
determined for the exporters and producers individually investigated.''
In this case, the rates for both individually examined respondents
are de minimis and accordingly, the Department will determine a
reasonable method for assigning a rate to East Sea and Agifish. The
Department has available in administrative reviews information that
would not be available in an investigation, namely rates from prior
administrative and new shipper reviews. Accordingly, since the
determination in the investigation in this proceeding, the Department
has determined that in cases where we have found dumping margins in
previous segments of a proceeding, a reasonable method for determining
the rate for non-selected companies is to use the most recent rate
calculated for the non-selected company in question unless we
calculated in a more recent review a rate for any company that was not
zero, de minimis or based entirely on facts available. See Shrimp from
Vietnam I & D at Comment 6; Ball Bearings and Parts Thereof from
France, Germany, Italy, Japan, and the United Kingdom: Final Results of
Antidumping Duty Administrative Reviews and Rescission of Review in
Part, 73 FR 52823, 52824 (September 11, 2008) and accompanying Issues
and Decision Memorandum at Comment 6; Certain Fish Fillets from the
Socialist Republic of Vietnam: Notice of Preliminary Results of the New
Shipper Review and Fourth Antidumping Duty Administrative Review and
Partial Rescission of the Fourth Administrative Review, 73 FR 52015
(September 8, 2008) (changed in final results as final calculated rate
for mandatory respondent was above de minimis, which remained unchanged
in the amended final results); see also Certain Polyester Staple Fiber
From the People's Republic of China: Notice of Preliminary Results of
the Antidumping Duty Administrative Review and Extension of Time Limits
for the Final Results, 74 FR 32125 (July 7, 2009). Agifish recently
received an assigned non-de minimis per-unit rate of $0.02 per kilogram
in an antidumping duty new shipper and administrative review.\6\ See
Notice of Amended Final Results of Antidumping Duty Administrative
Review: Certain Frozen Fish Fillets from Vietnam (``4th AR Final''), 74
FR 17816 (April 17, 2009). We have assigned a non-selected separate
rate of $0.02 per kilogram for Agifish and East Sea for the purposes of
these preliminary results, as it is the assigned rate from the most
recently completed segment of the proceeding that is above de minimis
and not based on adverse facts available (``AFA''). The $0.02 per
kilogram is a non-de minimis per unit rate. For the Vietnam-wide
entity, we have assigned the entity's current rate and only rate ever
determined for the entity in this proceeding, which is $2.11 per
[[Page 45808]]
kilogram, which is a non-de minimis per-unit rate.
---------------------------------------------------------------------------
\6\ The rate assigned for Agifish was, in ad valorem terms,
above de minimis.
---------------------------------------------------------------------------
Verification
Pursuant to 19 CFR 351.307(b)(iv), we conducted verification of the
sales and factors of production (``FOP'') for SAMEFICO between April
13-15, 2009, in Tra Vinh City Vietnam. See Memorandum to the File from
Alexis Polovina and Timothy Lord, Case Analysts through Alex
Villanueva, Program Manager, Verification of the Sales and Processing
Response of Saigon-Mekong Fishery Co., Ltd. (``SAMEFICO'') in the
Antidumping New Shipper Review of Certain Frozen Fish Fillets from the
Socialist Republic of Vietnam (``Vietnam''), dated June 30, 2009
(``SAMEFICO Verification Report''). We conducted a verification of the
sales and FOP for Vinh Hoan between June 22 and July 1, 2009 in Cao
Lanh, Dong Thap Province and in Ho Chi Minh City Vietnam. See
Memorandum to the File from Javier Barrientos and Alan Ray, Senior and
Case Analysts, through Alex Villanueva, Program Manager, Verification
of the Sales and Processing Response of Vinh Hoan Co., Ltd/Corp.
(``Vinh Hoan'') in the Antidumping Duty New Shipper and Administrative
Reviews of Certain Frozen Fish Fillets from the Socialist Republic of
Vietnam (``Vietnam''), dated August 28, 2009 (``Vinh Hoan Verification
Report'').
Scope of the Order
The product covered by this Order is frozen fish fillets, including
regular, shank, and strip fillets and portions thereof, whether or not
breaded or marinated, of the species Pangasius Bocourti, Pangasius
Hypophthalmus (also known as Pangasius Pangasius), and Pangasius
Micronemus. Frozen fish fillets are lengthwise cuts of whole fish. The
fillet products covered by the scope include boneless fillets with the
belly flap intact (``regular'' fillets), boneless fillets with the
belly flap removed (``shank'' fillets), boneless shank fillets cut into
strips (``fillet strips/finger''), which include fillets cut into
strips, chunks, blocks, skewers, or any other shape. Specifically
excluded from the scope are frozen whole fish (whether or not dressed),
frozen steaks, and frozen belly-flap nuggets. Frozen whole dressed fish
are deheaded, skinned, and eviscerated. Steaks are bone-in, cross-
section cuts of dressed fish. Nuggets are the belly-flaps. The subject
merchandise will be hereinafter referred to as frozen ``basa'' and
``tra'' fillets, which are the Vietnamese common names for these
species of fish. These products are classifiable under tariff article
codes 1604.19.4000, 1604.19.5000, 0305.59.4000, 0304.29.6033 (Frozen
Fish Fillets of the species Pangasius including basa and tra) of the
Harmonized Tariff Schedule of the United States (``HTSUS'').\7\ This
Order covers all frozen fish fillets meeting the above specification,
regardless of tariff classification. Although the HTSUS subheading is
provided for convenience and customs purposes, our written description
of the scope of the Order is dispositive.
---------------------------------------------------------------------------
\7\ Until July 1, 2004, these products were classifiable under
tariff article codes 0304.20.60.30 (Frozen Catfish Fillets),
0304.20.60.96 (Frozen Fish Fillets, NESOI), 0304.20.60.43 (Frozen
Freshwater Fish Fillets) and 0304.20.60.57 (Frozen Sole Fillets) of
the HTSUS. Until February 1, 2007, these products were classifiable
under tariff article code 0304.20.60.33 (Frozen Fish Fillets of the
species Pangasius including basa and tra) of the HTSUS.
---------------------------------------------------------------------------
Non-Market Economy Country Status
In every case conducted by the Department involving Vietnam,
Vietnam has been treated as a non-market economy (``NME'') country. In
accordance with section 771(18)(C)(i) of the Act (``the Act''), any
determination that a foreign country is an NME country shall remain in
effect until revoked by the administering authority. See Notice of
Final Results of Administrative Review: Certain Frozen Fish Fillets
from the Socialist Republic of Vietnam, 73 FR 15479 (March 17, 2008)
and accompanying Issues and Decision Memorandum (``3rd AR Final
Results''). None of the parties to this proceeding have contested such
treatment. Accordingly, we calculated NV in accordance with section
773(c) of the Act, which applies to NME countries.
Surrogate Country and Surrogate Values
On April 2, 2009, the Department sent interested parties a letter
setting a deadline to submit comments on surrogate country selection
and information pertaining to valuing factors of production (``FOP'').
QVD, Cadovimex II, SAMEFICO, and Petitioners submitted surrogate
country comments and surrogate value data on April 20, 2009. On April
30, 2009, Respondents submitted a rebuttal to Petitioners' comments. On
August 10, 2009, Respondents reiterated their April 20 and April 30,
2009, comments.
Surrogate Country
When the Department is investigating imports from an NME country,
section 773(c)(1) of the Act directs it to base NV, in most
circumstances, on the NME producer's FOPs, valued in a surrogate market
economy country or countries considered to be appropriate by the
Department. In accordance with section 773(c)(4) of the Act, in valuing
the FOPs, the Department shall utilize, to the extent possible, the
prices or costs of FOPs in one or more market economy countries that
are: (1) At a level of economic development comparable to that of the
NME country; and (2) significant producers of comparable merchandise.
The sources of the surrogate factor values are discussed under the
``Normal Value'' section below and in the Memorandum to the File
through Alex Villanueva, Program Manager, Office 9, from Alexis
Polovina, Case Analyst, dated August 27, 2009.
The Department determined that Bangladesh, Pakistan, India,
Indonesia, the Philippines, and Sri Lanka are countries comparable to
Vietnam in terms of economic development.\8\ Once it has identified
economically comparable countries, the Department's practice is to
select an appropriate surrogate country from the list based on the
availability and reliability of data from the countries. See Department
Policy Bulletin No. 04.1: Non-Market Economy Surrogate Country
Selection Process (March 1, 2004).
---------------------------------------------------------------------------
\8\ See Memorandum from Kelly Parkhill, Acting Director of
Office of Policy, to Alex Villanueva, Program Manager, China/NME
Group, Office 9: Antidumping Duty Administrative Review of Certain
Frozen Fish Fillets from the Socialist Republic of Vietnam
(Vietnam): Request for a List of Surrogate Countries (``Surrogate
Country List'') (January 15, 2009).
---------------------------------------------------------------------------
In this case, we have found that Bangladesh is a significant
producer of comparable merchandise. We find Bangladesh to be a reliable
source for surrogate values because Bangladesh is at a similar level of
economic development pursuant to section 773(c)(4) of the Act, is a
significant producer of comparable merchandise, and has more complete
publicly available and reliable data. Thus, we have selected Bangladesh
as the primary surrogate country for this administrative review.
However, in certain instances where Bangladeshi data was not available,
we looked to see if Philippine data was available, and if not, we used
data from Indian or Indonesian sources. For a more complete explanation
of the surrogate country selection, see Memorandum to the File, through
James C. Doyle, Office 9 Director, through Alex Villanueva, Office 9
Program Manager, from Timothy Lord, Office 9 Case Analyst, dated August
28, 2009, Fifth Antidumping Duty Administrative Review and Aligned
Fourth New Shipper Review of Certain Frozen Fish Fillets from the
Socialist Republic of
[[Page 45809]]
Vietnam: Selection of a Surrogate Country (``Surrogate Value Memo'').
In accordance with 19 CFR 351.301(c)(3)(ii), for the final results
in an antidumping administrative review, interested parties may submit
publicly available information to value FOPs within 20 days after the
date of publication of these preliminary results.
Affiliations
Section 771 (33) of the Act provides that:
The following persons shall be considered to be `affiliated' or
`affiliated persons':
(A) Members of a family, including brothers and sisters (whether by
the whole or half blood), spouse, ancestors, and lineal descendants;
(B) Any officer of director of an organization and such
organization;
(C) Partners;
(D) Employer and employee;
(E) Any person directly or indirectly owning, controlling, or
holding with power to vote, 5 percent or more of the outstanding voting
stock or shares of any organization and such organization;
(F) Two or more persons directly or indirectly controlling,
controlled by, or under common control with, any person;
(G) Any person who controls any other person and such other person.
Additionally, section 771(33) of the Act stipulates that: ``For
purposes of this paragraph, a person shall be considered to control
another person if the person is legally or operationally in a position
to exercise restrain or direction over the other person.''
In the final results of the third antidumping duty administrative
review, the Department determined that QVD Choi Moi Farming Cooperative
(``QVD Choi Moi'') would no longer be collapsed with QVD, QVD DT, and
Thuan Hung, pursuat to sections 771(33)(A), (B), (E), (F), and (G) of
the Act and 19 CFR 351.401(f). See Memorandum to David M. Spooner,
Assistant Secretary for Import Administration, from Stephen J. Claeys,
Deputy Assistant Secretary: Issues and Decision Memorandum for the
Final Results of the Administrative Review: Certain Frozen Fish Fillets
from the Socialist Republic of Vietnam (``Vietnam'') (``3rd I & D'')
(March 17, 2008). The Department also determined that QVD USA is
affiliated with QVD, QVD Dong Thap, and Thuan Hung pursuant to sections
771(33)(A), (B), (E), (F), and (G) of the Act. Therefore, the
Department determined to calculate a constructed export price (``CEP'')
through QVD USA to its first unaffiliated U.S. customer. See 3rd I & D
at Comment 5. The Department also determined that Beaver Street
Fisheries (``BSF'') and QVD USA were not affiliated. See Id.
In QVD's Section A Questionnaire Response, it stated that during
the POR ``the QVD shareholders sold the land and all shareholdings in
QVD Choi Moi on May 4, 2008.'' See QVD's December 4, 2008, Section A
Questionnaire at 3. Therefore, based on the record evidence in this
review we find find QVD Choi Moi is no longer affiliated with QVD
entities as of May 4, 2008.
For these preliminary results, based on the information on the
record of this proceeding, the Department continues to find that QVD,
QVD DT, and Thuan Hung should be collapsed and treated as a single
entity. See 3rd I & D at Comment 5. Similarly, for these preliminary
results, based on the information on the record of this proceeding, the
Department continues to find that QVD and QVD USA are affiliated
pursuant to sections 771(33)(A), (B), (E), (F), and (G) of the Act. For
these preliminary results, we also continue to find that BSF and QVD
USA are not affiliated.
Based on evidence submitted by Vinh Hoan and explained at
verification, we preliminarily find that Vinh Hoan is affiliated Vinh
Hoan 1 Feed Joint Stock Company (``Vinh Hoan Feed'') and Van Duc,
pursuant to section 771(33) of the Act. Because much of the facts
underlying this determination are business proprietary, for a detailed
discussion of affiliations, please see Vinh Hoan Verification Report at
pages 4-8 and 15-18. In addition, based on evidence found at
verification of Vinh Hoan, we preliminarily find that Vinh Hoan, and
Van Duc, but not Vinh Hoan Feed, should be treated as a single entity
for purposes of this new shipper review. See 19 CFR 351.401(f)(1).
Also based on evidence submitted by Vinh Hoan and explained at
verification, we preliminarily find that Vinh Hoan is affiliated Vinh
Hoan USA, pursuant to section 771(33) of the Act. Id.
Based on evidence submitted by Cadovimex II in their questionnaire
responses, we preliminarily find that Cadovimex II is affiliated with
Oceanwide Seafood, LLC (``Oceanwide''), pursuant to section 771(33) of
the Act. Id.
Fair Value Comparisons
To determine whether sales of the subject merchandise made by QVD,
Vinh Hoan, SAMEFICO or Cadovimex II to the United States were at prices
below NV, we compared each company's export price (``EP'') or CEP,
where appropriate, to NV, as described below.
U.S. Price
For SAMEFICO's and Vinh Hoan's EP sales, we used the EP
methodology, pursuant to section 772(a) of the Act, because the first
sale to an unaffiliated purchaser was made prior to importation and CEP
was not otherwise warranted by the facts on the record. We calculated
EP based on the Free-on-board foreign port price to the first
unaffiliated purchaser in the United States. For the EP sales, we also
deducted foreign inland freight, foreign cold storage, and
international ocean freight from the starting price (or gross unit
price), in accordance with section 772(c) of the Act.
In accordance with section 772(b) of the Act, we used the CEP
methodology when the first sale to an unaffiliated purchaser occurred
after importation of the merchandise into the United States. In this
instance, we calculated CEP for all of QVD's, Cadovimex II's, and Vinh
Hoan's U.S. sales through their respective U.S. affiliates, QVD USA,
Oceanwide, and Vinh Hoan USA to unaffiliated customers.
For QVD's, Cadovimex II's, and Vinh Hoan's CEP sales, we made
adjustments to the gross unit price for billing adjustments, rebates,
foreign inland freight, international freight, foreign cold storage,
U.S. marine insurance, U.S. inland freight, U.S. warehousing, U.S.
inland insurance, other U.S. transportation expenses, and U.S. customs
duties. In accordance with section 772(d)(1) of the Act, we also
deducted those selling expenses associated with economic activities
occurring in the United States, including commissions, credit expenses,
advertising expenses, indirect selling expenses, inventory carrying
costs, and U.S. re-packing costs. We also made an adjustment for profit
in accordance with section 772(d)(3) of the Act.
Where movement expenses were provided by NME-service providers or
paid for in NME currency, we valued these services using either
Bangladeshi or Indian surrogate values. See Surrogate Value Memo. Where
applicable, we used the actual reported expense for those movement
expenses provided by ME suppliers and paid for in ME currency.
Bona Fide New Shipper Analysis
Consistent with the Department's practice, we investigated the bona
fide nature of the sales made by SAMEFICO and Cadovimex II for the new
shipper review. In evaluating whether a sale is bona fide, the
Department considers,
[[Page 45810]]
inter alia, such factors as: (1) The timing of the sale; (2) the price
and quantity; (3) the expenses arising from the transaction; (4)
whether the goods were resold at a profit; and (5) whether the
transaction was made on an arms-length basis. We preliminarily find
that the new shipper sales made by SAMEFICO and Cadovimex II are bona
fide transactions. See Memo to the File Through Alex Villanueva,
Program Manager, Office 9 from Alexis Polovina, Case Analyst:
Antidumping Duty New Shipper Review of Certain Frozen Fish Fillets from
the Socialist Republic of Vietnam: Bona Fide Nature of the Sale Under
Review for Saigon-Mekong Fishery Co., Ltd. and Memo to the File Through
Alex Villanueva, Program Manager, Office 9 from Tim Lord, Case Analyst:
Antidumping Duty New Shipper Review of Certain Frozen Fish Fillets from
the Socialist Republic of Vietnam: Bona Fide Nature of the Sale Under
Review for Cadovimex II Seafood Import-Export & Processing Joint Stock
Company, dated August 27, 2009. Based on our investigation into the
bona fide nature of the sales, the questionnaire responses submitted by
SAMEFICO and Cadovimex, as well the companies' eligibility for a
separate rate (see ``Separate Rates'' section above), and the
Department's preliminary determination that SAMEFICO and Cadovimex II
were not affiliated with any exporter or producer that had previously
shipped subject merchandise to the United States, we preliminarily
determine that SAMEFICO and Cadovimex II have met the requirements to
qualify as new shippers during the POR. Therefore, for purposes of
these preliminary results of review, we are treating SAMEFICO's and
Cadovimex II's respective sales of subject merchandise to the United
States as appropriate transactions for this new shipper review. We will
continue to evaluate all aspects of SAMEFICO's and Cadovimex II's sales
during the final results.
Normal Value
Section 773(c)(1) of the Act provides that, in the case of an NME,
the Department shall determine NV using an FOP methodology if the
merchandise is exported from an NME and the information does not permit
the calculation of NV using home-market prices, third-country prices,
or constructed value under section 773(a) of the Act. Because
information on the record does not permit the calculation of NV using
home-market prices, third-country prices, or constructed value and no
party has argued otherwise, we calculated NV based on FOPs reported by
QVD, Vinh Hoan, SAMEFICO, and Cadovimex II, pursuant to sections
773(c)(3) and (4) of the Act and 19 CFR 351.408(c).
As the basis for NV, QVD, Vinh Hoan, SAMEFICO, and Cadovimex II
provided FOPs used in each of the stages for processing frozen fish
fillets. Our general policy, consistent with section 773(c)(1)(B) of
the Act, is to value the FOPs that a respondent uses to produce the
subject merchandise.
To calculate NV, we valued QVD's, Vinh Hoan's, SAMEFICO's, and
Cadovimex II's reported per-unit factor quantities using publicly
available Bangladeshi, Philippine, Indian, and Indonesian surrogate
values. Bangladesh was our first surrogate country source from which to
obtain data to value inputs, and when data was not available from
there, we used Philippine, Indian, or Indonesian sources. In selecting
surrogate values, we considered the quality, specificity, and
contemporaneity of the available values. As appropriate, we adjusted
the value of material inputs to account for delivery costs.
Specifically, we added surrogate freight costs to surrogate values
using the reported distances from the Vietnam port to the Vietnam
factory or from the domestic supplier to the factory, where
appropriate. This adjustment is in accordance with the decision of the
CAFC in Sigma Corp. v. United States, 117 F.3d 1401, 1407-1408 (Fed.
Cir. 1997).
For those values not contemporaneous with the POR, we adjusted for
inflation using data published in the International Monetary Fund's
International Financial Statistics. Import data from South Korea,
Thailand and Indonesia were excluded from the surrogate country import
data due to generally available export subsidies. See China Nat'l Mach.
Import & Export Corp. v. United States, CIT 01-1114, 293 F. Supp. 2d
1334 (CIT 2003), aff'd 104 Fed. Appx. 183 (Fed. Cir. 2004), and Certain
Cut-to-Length Carbon Steel Plate from Romania: Notice of Final Results
and Final Partial Rescission of Antidumping Duty Administrative Review,
70 FR 12651, and accompanying issues and Decision Memorandum at Comment
4 (March 15, 2005). Additionally, we excluded prices from NME countries
and imports that were labeled as originating from an ``unspecified''
Asian country. The Department excluded these imports because it could
not ascertain whether they were from either an NME country or a country
with general export subsidies. We converted the surrogate values to
U.S. dollars as appropriate, using the official exchange rate recorded
on the dates of sale of subject merchandise in this case, obtained from
https://www.ia.ita.doc.gov/exchange/. For further detail, see
Surrogate Values Memo.
Preliminary Results of the Review
As a result of our review, we preliminarily find that the following
margins exist for the period August 1, 2007, through July 31, 2008:
---------------------------------------------------------------------------
\9\ This rate is applicable to the QVD Single Entity which
includes QVD, QVD DT, and Thuan Hung.
Certain Frozen Fish Fillets From Vietnam
------------------------------------------------------------------------
Weighted-
average margin
Manufacturer/exporter (dollars per
kilogram)
------------------------------------------------------------------------
QVD \9\............................................... 0.00
Vinh Hoan............................................. 0.00
Agifish............................................... 0.02
SAMEFICO.............................................. 0.00
Cadovimex II.......................................... 0.00
East Sea.............................................. 0.02
Vietnam-wide Entity................................... 2.11
------------------------------------------------------------------------
Public Comment
The Department will disclose to parties of this proceeding the
calculations performed in reaching the preliminary results within ten
days of the date of announcement of the preliminary results. An
interested party may request a hearing within 30 days of publication of
the preliminary results. See 19 CFR 351.310(c). Interested parties may
submit written comments (case briefs) within 30 days of publication of
the preliminary results and rebuttal comments (rebuttal briefs), which
must be limited to issues raised in the case briefs, within five days
after the time limit for filing case briefs. See 19 CFR
351.309(c)(1)(ii) and 19 CFR 351.309(d). Parties who submit arguments
are requested to submit with the argument: (1) A statement of the
issue; (2) a brief summary of the argument; and (3) a table of
authorities. Further, the Department requests that parties submitting
written comments provide the Department with a diskette containing the
public version of those comments. Unless the deadline is extended
pursuant to section 751(a)(3)(A) of the Act, the Department will issue
the final results of this
[[Page 45811]]
administrative review, including the results of our analysis of the
issues raised by the parties in their comments, within 120 days of
publication of the preliminary results. The assessment of antidumping
duties on entries of merchandise covered by this review and future
deposits of estimated duties shall be based on the final results of
this review.
Assessment Rates
Upon completion of this administrative review, pursuant to 19 CFR
351.212(b), the Department will calculate an assessment rate on all
appropriate entries. For the mandatory respondents, QVD and Vinh Hoan,
and new shippers, SAMEFICO and Cadovimex II, we will calculate
importer-specific duty assessment rates on a per-unit basis.\10\ Where
the assessment rate is de minimis, we will instruct CBP to assess no
duties on all entries of subject merchandise by that importer. We will
instruct CBP to liquidate entries containing merchandise from the PRC-
wide entity at the PRC-wide rate we determine in the final results of
review. We will issue assessment instructions to CBP 15 days after the
date of publication of the final results of review.
---------------------------------------------------------------------------
\10\ We divided the total dumping margins (calculated as the
difference between NV and EP or CEP) for each importer by the total
quantity of subject merchandise sold to that importer during the POR
to calculate a per-unit assessment amount. We will direct CBP to
assess importer-specific assessment rates based on the resulting
per-unit (i.e., per-kilogram) rates by the weight in kilograms of
each entry of the subject merchandise during the POR.
---------------------------------------------------------------------------
Cash Deposit Requirements
The following cash deposit requirements will be effective upon
publication of the final results of this administrative review for all
shipments of the subject merchandise 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 the exporters
listed above, except for Cadovimex II and SAMEFICO, the cash deposit
rate will be that established in the final results of this review
(except, if the rate is zero or de minimis, the cash deposit will be
zero); (2) for previously investigated or reviewed Vietnam and non-
Vietnam exporters not listed above that have separate rates, the cash
deposit rate will continue to be the exporter-specific rate published
for the most recent period; (3) for all Vietnam exporters of subject
merchandise which have not been found to be entitled to a separate
rate, the cash deposit rate will be the Vietnam-wide rate of $2.11 per
kilogram; and (4) for all non-Vietnam exporters of subject merchandise
which have not received their own rate, the cash deposit rate will be
the rate applicable to the Vietnam exporters that supplied that non-
Vietnam exporter. These deposit requirements, when imposed, shall
remain in effect until further notice.
The following cash deposit requirements will be effective upon
publication of the final results of this review for all shipments of
subject merchandise from new shippers Cadovimex II or SAMEFICO 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 Cadovimex II or
produced and exported by SAMEFICO, the cash deposit rate will be zero;
(2) for subject merchandise exported by Cadovimex II or SAMEFICO but
not manufactured by Cadovimex II or SAMEFICO, the cash deposit rate
will continue to be the Vietnam-wide rate (i.e., $2.11 per kilogram);
and (3) for subject merchandise manufactured by Cadovimex II or
SAMEFICO, but exported by any other party, the cash deposit rate will
be the rate applicable to the exporter. If the cash deposit rate
calculated in the final results is zero or de minimis, no cash deposit
will be required for those specific producer-exporter combinations.
These cash deposit requirements, when imposed, shall remain in effect
until further notice.
Notification to Interested Parties
This notice serves as a preliminary reminder to importers of their
responsibility under 19 CFR 351.402(f)(2) to file a certificate
regarding the reimbursement of antidumping duties prior to liquidation
of the relevant entries during this POR. Failure to comply with this
requirement could result in the Secretary's presumption that
reimbursement of antidumping duties occurred and the subsequent
assessment of double antidumping duties.
We are issuing and publishing this determination in accordance with
sections 751(a)(1) and 777(i)(1) of the Act.
Dated: August 28, 2009.
Ronald K. Lorentzen,
Acting Assistant Secretary for Import Administration.
[FR Doc. E9-21429 Filed 9-3-09; 8:45 am]
BILLING CODE 3510-DS-P
