Certain Frozen Fish Fillets From the Socialist Republic of Vietnam: Preliminary Results of New Shipper Review, 4350-4355 [2010-1625]
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Federal Register / Vol. 75, No. 17 / Wednesday, January 27, 2010 / Notices
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DEPARTMENT OF COMMERCE
International Trade Administration
[A–552–801]
Certain Frozen Fish Fillets From the
Socialist Republic of Vietnam:
Preliminary Results of New Shipper
Review
AGENCY: Import Administration,
International Trade Administration,
Department of Commerce.
SUMMARY: On February 1, 2005, the
Department published in the Federal
Register 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’’). The Department is conducting
a new shipper review (‘‘NSR’’) of the
Order, covering the period of review
(‘‘POR’’) of August 1, 2008, through
January 31, 2009. If these preliminary
results are adopted in our final results
of review, we will instruct U.S. Customs
and Border Protection (‘‘CBP’’) to assess
antidumping duties on entries of subject
merchandise during the POR for which
the importer-specific assessment rates
are above de minimis.
DATES: Effective Date: January 27, 2010.
FOR FURTHER INFORMATION CONTACT:
Javier Barrientos, AD/CVD Operations,
Office 9, Import Administration,
International Trade Administration,
U.S. Department of Commerce, 14th
Street and Constitution Avenue, NW.,
Washington DC 20230; telephone: (202)
482–2243.
SUPPLEMENTARY INFORMATION:
General Background
On February 6, 2009, pursuant to
section 751(a)(2)(B)(i) of the Tariff Act
of 1930, as amended (‘‘the Act’’), and 19
CFR 351.214(c), the Department
received an NSR request from NTSF
Seafoods Joint Stock Company
(‘‘NTSF’’). NTSF certified that it is the
producer and exporter of the subject
merchandise upon which the request
was based.
On March 24, 2009, the Department
initiated a NSR on frozen fish fillets
from Vietnam covering NTSF. See
Certain Frozen Fish Fillets from the
Socialist Republic of Vietnam: Initiation
of Antidumping Duty New Shipper
Review, 74 FR 13415 (March 27, 2009).
On March 31, 2009, the Department
issued its original antidumping duty
questionnaire to NTSF. Between April
27, 2009, and October 28, 2009, NTSF
submitted responses to the original and
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supplemental sections A, C, and D
antidumping duty questionnaires.
Extension of Time Limits
On September 25, 2009, the
Department extended the deadline for
the preliminary results of this review by
120 days, to January 18, 2010. See
Certain Frozen Fish Fillets from the
Socialist Republic of Vietnam:
Extension of Time Limits for the
Preliminary Results of the New Shipper
Review, 74 FR 48905 (September 25,
2009) 1 (‘‘Extension’’).
Surrogate Country and Surrogate
Values
On December 18, 2009, the
Department sent interested parties a
letter requesting comments on surrogate
country selection and information
pertaining to valuing factors of
production (‘‘FOP’’). On December 30,
2009, NTSF and Petitioners 2 submitted
surrogate country comments and
surrogate value data. On January 11,
2010, NTSF and Petitioners submitted
rebuttal comments to the December 30,
2009, surrogate country and surrogate
value submissions.
Verification
Pursuant to 19 CFR 351.307(b)(iv), we
conducted verification of the sales and
factors of production (‘‘FOP’’) for NTSF
between November 16, 2009, and
November 23, 2009. See Verification of
the Sales and Factors of Production
Responses of NTSF Seafoods Joint Stock
Company, in the Antidumping Duty
New Shipper Review of Certain Frozen
Fish Fillets from the Socialist Republic
of Vietnam (‘‘Verification Report’’),
issued concurrently with these
preliminary results.
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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.
1 Where a statutory deadline falls on a weekend,
federal holiday, or any other day when the
Department is closed, the Department will continue
its longstanding practice of reaching our
determination on the next business day. In this
instance, the preliminary results will be released no
later than January 19, 2010.
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
(collectively, ‘‘Petitioners’’).
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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
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’’).3 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.
Use of Facts Available
Section 776(a)(2) of the Tariff Act of
1930, as amended (‘‘the Act’’), provides
that, if an interested party: (A)
Withholds information that has been
requested by the Department; (B) fails to
provide such information in a timely
manner or in the form or manner
requested subject to sections 782(c)(1)
and (e) of the Act; (C) significantly
impedes a proceeding under the
antidumping statute; or (D) provides
such information but the information
cannot be verified, the Department
shall, subject to subsection 782(d) of the
Act, use facts otherwise available in
reaching the applicable determination.
Section 782(c)(1) of the Act provides
that if an interested party ‘‘promptly
after receiving a request from {the
Department} for information, notifies
{the Department} that such party is
unable to submit the information
requested in the requested form and
manner, together with a full explanation
3 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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and suggested alternative form in which
such party is able to submit the
information,’’ the Department may
modify the requirements to avoid
imposing an unreasonable burden on
that party.
Section 782(d) of the Act provides
that, if the Department determines that
a response to a request for information
does not comply with the request, the
Department will inform the person
submitting the response of the nature of
the deficiency and shall, to the extent
practicable, provide that person the
opportunity to remedy or explain the
deficiency. If that person submits
further information that continues to be
unsatisfactory, or this information is not
submitted within the applicable time
limits, the Department may, subject to
section 782(e), disregard all or part of
the original and subsequent responses,
as appropriate.
Section 782(e) of the Act states that
the Department shall not decline to
consider information deemed
‘‘deficient’’ under section 782(d) if: (1)
The information is submitted by the
established deadline; (2) the information
can be verified; (3) the information is
not so incomplete that it cannot serve as
a reliable basis for reaching the
applicable determination; (4) the
interested party has demonstrated that it
acted to the best of its ability; and (5)
the information can be used without
undue difficulties.
Furthermore, section 776(b) of the Act
states that if the Department ‘‘finds that
an interested party has failed to
cooperate by not acting to the best of its
ability to comply with a request for
information from the administering
authority or the Commission, the
administering authority or the
Commission * * *, in reaching the
applicable determination under this
title, may use an inference that is
adverse to the interests of that party in
selecting from among the facts
otherwise available.’’ See also Statement
of Administrative Action (SAA)
accompanying the Uruguay Round
Agreements Act (URAA), H.R. Rep. No.
103–316, Vol. 1 at 870 (1994).
For these preliminary results, in
accordance with sections 776(a)(2)(A)
through (D) of the Act, we have
determined that the use of adverse facts
available (‘‘AFA’’) is warranted for NTSF
because of an unreported labor amounts
found at verification. See Verification
Report at 21. As partial AFA, we are we
are adding the unreported labor
amounts from November 2008 (the
highest usage month for these
unreported categories of labor) to
NTSF’s labor factor. See Analysis of the
Preliminary Results of the Antidumping
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Duty New Shipper Review of Certain
Frozen Fish Fillets from the Socialist
Republic of Vietnam (‘‘Vietnam’’): NTSF
Seafoods Joint Stock Company
(‘‘NTSF’’), dated January 19, 2010.
Non-Market Economy Country Status
In every case conducted by the
Department involving Vietnam, Vietnam
has been treated as a non-market
(‘‘NME’’) country. In accordance with
section 771(18)(C)(i) of the Act, any
determination that a foreign country is
an NME country shall remain in effect
until revoked by the administering
authority. See Certain Frozen Fish
Fillets From the Socialist Republic of
Vietnam: Final Results of the
Antidumping Duty Administrative
Review and New Shipper Reviews, 74
FR 11349 (March 17, 2009) (‘‘4th AR
Final Results’’). None of the parties to
this proceeding has contested such
treatment. Accordingly, we calculated
normal value (‘‘NV’’) in accordance with
section 773(c) of the Act, which applies
to NME countries.
Separate Rate Determinations
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A designation as an NME remains in
effect until it is revoked by the
Department. See section 771(18)(C) of
the Act. Accordingly, there is a
rebuttable presumption that all
companies within Vietnam are subject
to government control and, thus, should
be assessed a single antidumping duty
rate. It is the Department’s standard
policy to assign all exporters of the
merchandise subject to review in NME
countries a single rate unless an
exporter can affirmatively demonstrate
an absence of government control, both
in law (de jure) and in fact (de facto),
with respect to exports. To establish
whether a company is sufficiently
independent to be entitled to a separate,
company-specific rate, the Department
analyzes each exporting entity in an
NME country under the test established
in the Final Determination of Sales at
Less than Fair Value: Sparklers from the
People’s Republic of China, 56 FR 20588
(May 6, 1991) (‘‘Sparklers’’), as amplified
by the Notice of Final Determination of
Sales at Less Than Fair Value: Silicon
Carbide from the People’s Republic of
China, 59 FR 22585 (May 2, 1994)
(‘‘Silicon Carbide’’).
A. Absence of De Jure Control
The Department considers the
following de jure criteria in determining
whether an individual company may be
granted a separate rate: (1) An absence
of restrictive stipulations associated
with an individual exporter’s business
and export licenses; and (2) any
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legislative enactments decentralizing
control of companies.
In this review, NTSF submitted
complete responses to the separate rates
section of the Department’s NME
questionnaire. The evidence submitted
by NTSF includes government laws and
regulations on corporate ownership,
business licenses, and narrative
information regarding the company’s
operations and selection of
management. The evidence provided by
NTSF supports a finding of a de jure
absence of government control over its
export activities. We have no
information in this proceeding that
would cause us to reconsider this
determination. Thus, we believe that the
evidence on the record supports a
preliminary finding of an absence of de
jure government control based on: (1) an
absence of restrictive stipulations
associated with the exporter’s business
license; and (2) the legal authority on
the record decentralizing control over
the respondents.
B. Absence of De Facto Control
The absence of de facto government
control over exports is based on whether
the Respondent: (1) Sets its own export
prices independent of the government
and other exporters; (2) retains the
proceeds from its export sales and
makes independent decisions regarding
the disposition of profits or financing of
losses; (3) has the authority to negotiate
and sign contracts and other
agreements; and (4) has autonomy from
the government regarding the selection
of management. See Silicon Carbide, 59
FR at 22587; Sparklers, 56 FR at 20589;
see also Notice of Final Determination
of Sales at Less Than Fair Value:
Furfuryl Alcohol from the People’s
Republic of China, 60 FR 22544, 22545
(May 8, 1995).
In its questionnaire responses, NTSF
submitted evidence indicating an
absence of de facto government control
over its export activities. Specifically,
this evidence indicates that: (1) NTSF
sets its own export prices independent
of the government and without the
approval of a government authority; (2)
NTSF retains the proceeds from its sales
and makes independent decisions
regarding the disposition of profits or
financing of losses; (3) NTSF has a
general manager, branch manager or
division manager with the authority to
negotiate and bind the company in an
agreement; (4) the general manager is
selected by the board of directors or
company employees, and the general
manager appoints the deputy managers
and the manager of each department;
and (5) there is no restriction on any of
the company’s use of export revenues.
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Therefore, the Department preliminarily
finds that NTSF has established prima
facie that they qualify for separate rates
under the criteria established by Silicon
Carbide and Sparklers.
New Shipper Review Bona Fide
Analysis
Consistent with the Department’s
practice, we investigated the bona fide
nature of the sales made by NTSF in this
new shipper review. We found that the
new shipper sales by NTSF were made
on a bona fide basis. Based on our
investigation into the bona fide nature
of the sales, the questionnaire responses
submitted by NTSF, and our
verification, as well the company’s
eligibility for separate rates (see
Separate Rates Determination section
above), we preliminarily determine that
NTSF has met the requirements to
qualify as a new shipper during this
POR. Therefore, for the purposes of
these preliminary results of review, we
are treating NTSF’s sales of subject
merchandise to the United States as
appropriate transactions for this new
shipper review.4
Surrogate Country
When the Department is investigating
imports from an NME country, section
773(c)(1) of the Act directs it to base NV,
in most circumstances, on the NME
producer’s factors of production
(‘‘FOPs’’), valued in a surrogate market
economy country or countries
considered to be appropriate by the
Department. In accordance with section
773(c)(4) of the Act, in valuing the
FOPs, the Department shall utilize, to
the extent possible, the prices or costs
of FOPs in one or more market economy
countries that are: (1) at a level of
economic development comparable to
that of the NME country; and (2)
significant producers of comparable
merchandise.
The Department determined that
Bangladesh, Pakistan, India, Sri Lanka,
Philippines and Indonesia are countries
comparable to Vietnam in terms of
economic development.5 Moreover, it is
the Department’s practice to select an
4 For more detailed discussion of this issue,
please see Memorandum from Javier Barrientos,
Case Analyst, Office 9, through Alex Villanueva,
Program Manager, Office 9: Bona Fide Nature of the
Sale in the Antidumping Duty New Shipper Review
of Certain Frozen Fish Fillets from the Socialist
Republic of Vietnam: NTSF Seafoods Joint Stock
Co., dated January 19, 2009.
5 See Memorandum from Kelley Parkhill, Acting
Director, Office of Policy, to Alex Villanueva,
Program Manager, AD/CVD Enforcement, Office 9:
Request for a list of Surrogate Countries for a New
Shipper Review of the Antidumping Duty Order on
Certain Frozen Fish Fillets (‘‘Fish Fillets’’) from the
Socialist Republic of Vietnam, dated December 18,
2009.
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appropriate surrogate country based on
the availability and reliability of data
from the countries. See Department
Policy Bulletin No. 04.1: Non-Market
Economy Surrogate Country Selection
Process (March 1, 2004) (‘‘Surrogate
Country Policy Bulletin’’). Since the
less-than-fair–value investigation, we
have determined that Bangladesh is
comparable to Vietnam in terms of
economic development and has
surrogate value data that is available
and reliable. In this proceeding, we
received comments regarding surrogate
country selection. However, parties did
not provide information in this review
that would warrant a change in the
Department’s selection of Bangladesh
from the prior segments. See
Memorandum to the File, through James
C. Doyle, Office Director, Office 9,
Import Administration, from Javier
Barrientos, Senior Case Analyst,
Subject: Antidumping Duty New
Shipper Review of Certain Frozen Fish
Fillets from the Socialist Republic of
Vietnam: Selection of a Surrogate
Country (January 19, 2009). Thus, we
continue to find that Bangladesh is the
appropriate surrogate country here
because Bangladesh is at a similar level
of economic development pursuant to
section 773(c)(4) of the Act, is a
significant producer of comparable
merchandise, and has reliable, publicly
available data representing a broadmarket average.
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.
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Affiliation
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 or director of an
organization and such organization;
(C) Partners;
(D) Employer and employee;
(E) Any person directly or indirectly
owning, controlling, or holding with
power to vote, 5 percent or more of the
outstanding voting stock or shares of
any organization and such organization;
(F) Two or more persons directly or
indirectly controlling, controlled by, or
under common control with, any
person;
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(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.’’
We preliminarily find Nha Trang
Seafoods Inc. (‘‘NTSI’’) and NTSF to be
affiliated parties within the meaning of
section 771(33)(E) of the Act, based on
ownership. NTSF wholly owns NTSI.
See Verification Report at 3. In addition,
the director of NTSF is the director of
NTSI. Id. at 6 and verification exhibit
NTST–1. Therefore, for these
preliminary results we will use the
constructed export price (‘‘CEP’’) price
paid, through NTSI, the U.S. importer,
by its first unaffiliated U.S. customer of
subject merchandise during the POR.
U.S. Price
Constructed Export Price
For NTSF, we based the U.S. price on
CEP in accordance with section 772(b)
of the Act, for sales made on behalf of
NTSF by its U.S. affiliate, NTSI, to an
unaffiliated purchaser. We based CEP
on packed and delivered prices to the
first unaffiliated purchaser in the United
States. Where appropriate, we made
deductions from the starting price (gross
unit price) for foreign movement
expenses, international movement
expenses, U.S. movement expenses, and
appropriate selling adjustments, in
accordance with section 772(c)(2)(A) of
the Act. 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. We deducted, where
appropriate, commissions, inventory
carrying costs, credit expenses, and
indirect selling expenses.
We reviewed the movement expenses
incurred in Vietnam by NTSF and find
that they were provided by an NME
vendor or paid for using Vietnamese
currency. Thus, we based the deduction
of these movement charges on surrogate
values. See Memorandum to the File
through Alex Villanueva, Program
Manager, Office 9 from Javier
Barrientos, Case Analyst, Office 9:
Antidumping Duty New Shipper
Review of Certain Frozen Fish Fillets
from the Socialist Republic of Vietnam:
Surrogate Values for the Preliminary
Results, dated January 19, 2009
(‘‘Surrogate Values Memo’’) for details
regarding the surrogate values for
movement expenses.
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Normal Value
1. Methodology
Section 773(c)(1)(B) of the Act
provides that the Department shall
determine the NV using a FOP
methodology if the merchandise is
exported from an NME country and the
information does not permit the
calculation of NV using home-market
prices, third-country prices, or
constructed value under section 773(a)
of the Act. The Department bases NV on
the FOPs because the presence of
government controls on various aspects
of NMEs renders price comparisons and
the calculation of production costs
invalid under the Department’s normal
methodologies.
Section 773(c)(1) of the Act provides
that the Department shall determine the
NV using a factors-of-production
methodology if: (1) the merchandise is
exported from a non-market economy
country; and (2) the information does
not permit the calculation of NV using
home-market prices, third-country
prices, or constructed value under
section 773(a) of the Act.
NTSF reported the inputs beginning
with the food-size fish because it is only
a processor of fish fillets and had no
hatchery or farming FOPs during the
POR. Therefore, it only reported FOPs
associated with the processing and
packing stages of production. As such,
the Department will account for all of
NTSF’s reported inputs in the normal
value calculation.
2. Factor Valuations
In accordance with section 773(c) of
the Act, we calculated NV based on
FOPs reported by NTSF during the POR.
To calculate NV, we multiplied the
reported per-unit factor-consumption
rates by publicly available surrogate
values. In selecting the surrogate values,
we considered the quality, specificity,
and contemporaneity of the data. As
appropriate, we adjusted input prices by
including freight costs to make them
delivered prices. Specifically, we added
to the surrogate values a surrogate
freight cost, and in the case of import
statistics surrogate values, using the
shorter of the reported distance from the
domestic supplier to the factory of
production or the distance from the
nearest seaport to the factory of
production where appropriate. This
adjustment is in accordance with court
decision in Sigma Corp. v. United
States, 24 C.I.T. 97, 86 F.Supp 2d 1344
(CIT 2000). Where we did not use
import statistics, we calculated freight
based on the reported distance from the
supplier to the factory.
E:\FR\FM\27JAN1.SGM
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Federal Register / Vol. 75, No. 17 / Wednesday, January 27, 2010 / Notices
It is the Department’s practice to
calculate price index adjustors to inflate
or deflate, as appropriate, surrogate
values that are not contemporaneous
with the POR using the wholesale price
index (‘‘WPI’’) for the subject country.
See Notice of Preliminary Determination
of Sales at Less Than Fair Value and
Postponement of Final Determination:
Hand Trucks and Certain Parts Thereof
from the People’s Republic of China, 69
FR 29509 (May 24, 2004). However, in
this case, a WPI was not available for
Bangladesh. Therefore, where publicly
available information contemporaneous
with the POR with which to value
factors could not be obtained, surrogate
values were adjusted using the
Consumer Price Index rate for
Bangladesh, or the WPI for India (for
certain surrogate values where
Bangladeshi data could not be
obtained), as published in the
International Financial Statistics of the
International Monetary Fund.
Bangladeshi and other surrogate
values denominated in foreign
currencies were converted to USD using
the applicable average exchange rate
based on exchange rate data from the
Department’s Web site.
For further details regarding the
surrogate values used for these
preliminary results, see the Surrogate
Values Memo.
Preliminary Results of the Review
The Department has determined that
the following preliminary dumping
margins exist for the period August 1,
2008, through January 31, 2009:
CERTAIN FROZEN FISH FILLETS FROM
VIETNAM
Manufacturer/Exporter
NTSF/NTSI ...........................
WeightedAverage
Margin
(Percent)
0.00
Disclosure
The Department will disclose to
parties of this proceeding the
calculations performed in reaching the
preliminary results within five days of
the date of publication of this notice in
accordance with 19 CFR 351.224(b).
srobinson on DSKHWCL6B1PROD with NOTICES
Comments
In accordance with 19 CFR
351.301(c)(3)(ii), for the final results of
this administrative review, interested
parties may submit publicly available
information to value FOPs within 20
days after the date of publication of
these preliminary results. Interested
parties must provide the Department
VerDate Nov<24>2008
18:51 Jan 26, 2010
Jkt 220001
with supporting documentation for the
publicly available information to value
each FOP. Additionally, in accordance
with 19 CFR 351.301(c)(1), for the final
results of this administrative review,
interested parties may submit factual
information to rebut, clarify, or correct
factual information submitted by an
interested party within ten days of the
applicable deadline for submission of
such factual information. However, the
Department notes that 19 CFR
351.301(c)(1) permits new information
only insofar as it rebuts, clarifies, or
corrects information recently placed on
the record.6
Interested parties may submit case
briefs and/or written comments no later
than 30 days after the date of
publication of these preliminary results
of this new shipper review. See 19 CFR
351.309(c)(ii). Rebuttal briefs and
rebuttals to written comments, limited
to issues raised in such briefs or
comments, may be filed no later than
five days after the deadline for
submitting the case briefs. See 19 CFR
351.309(d). The Department requests
that interested parties provide an
executive summary of each argument
contained within the case briefs and
rebuttal briefs.
Any interested party may request a
hearing within 30 days of publication of
these preliminary results. See 19 CFR
351.310(c). Requests should contain the
following information: (1) The party’s
name, address, and telephone number;
(2) the number of participants; and (3)
a list of the issues to be discussed. Oral
presentations will be limited to issues
raised in the briefs. If we receive a
request for a hearing, we plan to hold
the hearing seven days after the
deadline for submission of the rebuttal
briefs at the U.S. Department of
Commerce, 14th Street and Constitution
Avenue, NW., Washington, DC 20230.
The Department intends to issue the
final results of this new shipper review,
which will include the results of its
analysis raised in any such comments,
within 90 days of publication of these
preliminary results, pursuant to section
751(a)(2)(B)(iv) of the Act.
The Department intends to issue
assessment instructions to CBP 15 days
after the date of publication of the final
results of review. If these preliminary
results are adopted in our final results
of review, the Department shall
determine, and CBP shall assess,
antidumping duties on all appropriate
entries. Pursuant to 19 CFR
351.212(b)(1), we will calculate
importer-specific (or customer) per-unit
duty assessment rates. We will instruct
CBP to assess antidumping duties on all
appropriate entries covered by this
review if any importer-specific
assessment rate calculated in the final
results of this is above de minimis.
Cash-Deposit Requirements
The following cash deposit
requirements will be effective upon
publication of the final results of this
new shipper review for all shipments of
subject merchandise from NTSF
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 NTSF, the cash deposit rate
will be $0.00/Kg.; (2) for subject
merchandise exported by NTSF but not
manufactured by NTSF, the cash
deposit rate will continue to be the
Vietnam-wide rate (i.e., 63.88 percent);
and (3) for subject merchandise
manufactured by NTSF, 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.
Assessment Rates
Upon completion of the final results,
pursuant to 19 CFR 351.212(b), the
Department will determine, and CBP
shall assess, antidumping duties on all
appropriate entries on a per-unit basis.7
Notification to Importers
This notice serves as a preliminary
reminder to importers of its
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.
6 See Glycine from the People’s Republic of
China: Final Results of Antidumping Duty
Administrative Review and Final Rescission, in Part
72 FR 58809 (October 17, 2007), and accompanying
Issues and Decision Memorandum at Comment 2.
7 We divided the total dumping margins
(calculated as the difference between NV and 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., perkilogram) rates by the weight in kilograms of each
entry of the subject merchandise during the POR.
PO 00000
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Federal Register / Vol. 75, No. 17 / Wednesday, January 27, 2010 / Notices
authority for Sites 2 and 3 if not
activated by January 31, 2015.
We are issuing and publishing this
determination in accordance with
sections 751(a)(2)(B) and 777(i) of the
Act, and 19 CFR 351.214(h) and
351.221(b)(4).
[FR Doc. 2010–1625 Filed 1–26–10; 8:45 am]
Signed at Washington, DC, this 15th day of
January 2010.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import
Administration, Alternate Chairman, ForeignTrade Zones Board.
Andrew McGilvray,
Executive Secretary.
BILLING CODE 3510–DS–P
[FR Doc. 2010–1631 Filed 1–26–10; 8:45 am]
Dated: January 19, 2010.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import
Administration.
BILLING CODE P
DEPARTMENT OF COMMERCE
DEPARTMENT OF COMMERCE
Foreign-Trade Zones Board
srobinson on DSKHWCL6B1PROD with NOTICES
Reorganization of Foreign-Trade Zone
234 Under Alternative Site Framework,
Gregg County, TX
Pursuant to its authority under the
Foreign-Trade Zones Act of June 18,
1934, as amended (19 U.S.C. 81a–81u),
the Foreign-Trade Zones Board (the
Board) adopts the following Order:
Whereas, the Board adopted the
alternative site framework (ASF) in
December 2008 (74 FR 1170, 01/12/09;
correction 74 FR 3987, 01/22/09) as an
option for the establishment or
reorganization of general-purpose zones;
Whereas, Gregg County, Texas,
grantee of Foreign-Trade Zone 234,
submitted an application to the Board
(FTZ Docket 27–2009, filed 7/7/2009)
for authority to reorganize under the
ASF with a service area of Gregg
County, Texas, adjacent to the
Shreveport-Bossier City Customs and
Border Protection port of entry, and FTZ
234’s existing Sites 1 through 3 would
be categorized as magnet sites;
Whereas, notice inviting public
comment was given in the Federal
Register (74 FR 34714–34715, 7/17/09)
and the application has been processed
pursuant to the FTZ Act and the Board’s
regulations; and,
Whereas, the Board adopts the
findings and recommendation of the
examiner’s report, and finds that the
requirements of the FTZ Act and
Board’s regulations are satisfied, and
that the proposal is in the public
interest;
Now, therefore, the Board hereby
orders:
The application to reorganize FTZ 234
under the alternative site framework is
approved, subject to the FTZ Act and
the Board’s regulations, including
Section 400.28, to the Board’s standard
2,000-acre activation limit for the
overall general-purpose zone project,
and to a five-year ASF sunset provision
for magnet sites that would terminate
VerDate Nov<24>2008
16:22 Jan 26, 2010
Jkt 220001
Signed at Washington, DC, this 15th day of
January 2010.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import
Administration, Alternate Chairman, ForeignTrade Zones Board.
Andrew McGilvray,
Executive Secretary.
[FR Doc. 2010–1627 Filed 1–26–10; 8:45 am]
Foreign-Trade Zones Board
[Order No. 1659]
overall general-purpose zone project,
and to a five-year ASF sunset provision
for magnet sites that would terminate
authority for Sites 3, 4, 5, 6 and 10 if
not activated by January 31, 2015 and
for Sites 2, 7, 8, 9, 11 and 12 if not
activated by March 31, 2015.
BILLING CODE P
[Order No. 1660]
Reorganization of Foreign-Trade Zone
39 Under Alternative Site Framework
Dallas/Fort Worth, TX
Pursuant to its authority under the
Foreign-Trade Zones Act of June 18,
1934, as amended (19 U.S.C. 81a–81u),
the Foreign-Trade Zones Board (the
Board) adopts the following Order:
Whereas, the Board adopted the
alternative site framework (ASF) in
December 2008 (74 FR 1170, 01/12/09;
correction 74 FR 3987, 01/22/09) as an
option for the establishment or
reorganization of general-purpose zones;
Whereas, the Dallas/Fort Worth
International Airport Board, grantee of
Foreign-Trade Zone 39, submitted an
application to the Board (FTZ Docket
29–2009, filed 7/17/2009) for authority
to reorganize under the ASF with a
service area of Dallas, Tarrant, Kaufman,
Collin, Grayson, and Denton Counties,
Texas, in and adjacent to the Dallas/Fort
Worth Customs and Border Protection
port of entry, and FTZ 39’s existing
Sites 1 through 12 would be categorized
as magnet sites;
Whereas, notice inviting public
comment was given in the Federal
Register (74 FR 36165–36166, 7/22/09)
and the application has been processed
pursuant to the FTZ Act and the Board’s
regulations; and,
Whereas, the Board adopts the
findings and recommendation of the
examiner’s report, and finds that the
requirements of the FTZ Act and
Board’s regulations are satisfied, and
that the proposal is in the public
interest;
Now, therefore, the Board hereby
orders:
The application to reorganize FTZ 39
under the alternative site framework is
approved, subject to the FTZ Act and
the Board’s regulations, including
Section 400.28, to the Board’s standard
2,000-acre activation limit for the
PO 00000
Frm 00020
Fmt 4703
Sfmt 9990
COMMODITY FUTURES TRADING
COMMISSION
Sunshine Act Meetings
AGENCY HOLDING THE MEETING:
Commodity Futures Trading
Commission.
TIME AND DATE:
11 a.m., Friday, February
26, 2010.
PLACE: 1155 21st St., NW., Washington,
DC, 9th Floor Commission Conference
Room.
STATUS:
Closed.
MATTERS TO BE CONSIDERED:
Surveillance
Matters.
CONTACT PERSON FOR MORE INFORMATION:
Sauntia S. Warfield, 202–418–5084.
Sauntia S. Warfield,
Assistant Secretary of the Commission.
[FR Doc. 2010–1784 Filed 1–25–10; 4:15 pm]
BILLING CODE 6351–01–P
COMMODITY FUTURES TRADING
COMMISSION
Sunshine Act Meeting
TIME AND DATE:
11 a.m., February 19,
2010.
PLACE: 1155 21st St., NW., Washington,
DC, 9th Floor Commission Conference
Room.
STATUS:
Closed.
MATTERS TO BE CONSIDERED:
Surveillance
Matters.
CONTACT PERSON FOR MORE INFORMATION:
Sauntia S. Warfield, 202–418–5084.
Sauntia S. Warfield,
Assistant Secretary of the Commission.
[FR Doc. 2010–1787 Filed 1–25–10; 4:15 pm]
BILLING CODE 6351–01–P
E:\FR\FM\27JAN1.SGM
27JAN1
]]>Agencies
[Federal Register Volume 75, Number 17 (Wednesday, January 27, 2010)]
[Notices]
[Pages 4350-4355]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-1625]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
[A-552-801]
Certain Frozen Fish Fillets From the Socialist Republic of
Vietnam: Preliminary Results of New Shipper Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: On February 1, 2005, the Department published in the Federal
Register 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''). The
Department is conducting a new shipper review (``NSR'') of the Order,
covering the period of review (``POR'') of August 1, 2008, through
January 31, 2009. If these preliminary results are adopted in our final
results of review, we will instruct U.S. Customs and Border Protection
(``CBP'') to assess antidumping duties on entries of subject
merchandise during the POR for which the importer-specific assessment
rates are above de minimis.
DATES: Effective Date: January 27, 2010.
FOR FURTHER INFORMATION CONTACT: Javier Barrientos, AD/CVD Operations,
Office 9, Import Administration, International Trade Administration,
U.S. Department of Commerce, 14th Street and Constitution Avenue, NW.,
Washington DC 20230; telephone: (202) 482-2243.
SUPPLEMENTARY INFORMATION:
General Background
On February 6, 2009, pursuant to section 751(a)(2)(B)(i) of the
Tariff Act of 1930, as amended (``the Act''), and 19 CFR 351.214(c),
the Department received an NSR request from NTSF Seafoods Joint Stock
Company (``NTSF''). NTSF certified that it is the producer and exporter
of the subject merchandise upon which the request was based.
On March 24, 2009, the Department initiated a NSR on frozen fish
fillets from Vietnam covering NTSF. See Certain Frozen Fish Fillets
from the Socialist Republic of Vietnam: Initiation of Antidumping Duty
New Shipper Review, 74 FR 13415 (March 27, 2009).
On March 31, 2009, the Department issued its original antidumping
duty questionnaire to NTSF. Between April 27, 2009, and October 28,
2009, NTSF submitted responses to the original and
[[Page 4351]]
supplemental sections A, C, and D antidumping duty questionnaires.
Extension of Time Limits
On September 25, 2009, the Department extended the deadline for the
preliminary results of this review by 120 days, to January 18, 2010.
See Certain Frozen Fish Fillets from the Socialist Republic of Vietnam:
Extension of Time Limits for the Preliminary Results of the New Shipper
Review, 74 FR 48905 (September 25, 2009) \1\ (``Extension'').
---------------------------------------------------------------------------
\1\ Where a statutory deadline falls on a weekend, federal
holiday, or any other day when the Department is closed, the
Department will continue its longstanding practice of reaching our
determination on the next business day. In this instance, the
preliminary results will be released no later than January 19, 2010.
---------------------------------------------------------------------------
Surrogate Country and Surrogate Values
On December 18, 2009, the Department sent interested parties a
letter requesting comments on surrogate country selection and
information pertaining to valuing factors of production (``FOP''). On
December 30, 2009, NTSF and Petitioners \2\ submitted surrogate country
comments and surrogate value data. On January 11, 2010, NTSF and
Petitioners submitted rebuttal comments to the December 30, 2009,
surrogate country and surrogate value submissions.
---------------------------------------------------------------------------
\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
(collectively, ``Petitioners'').
---------------------------------------------------------------------------
Verification
Pursuant to 19 CFR 351.307(b)(iv), we conducted verification of the
sales and factors of production (``FOP'') for NTSF between November 16,
2009, and November 23, 2009. See Verification of the Sales and Factors
of Production Responses of NTSF Seafoods Joint Stock Company, in the
Antidumping Duty New Shipper Review of Certain Frozen Fish Fillets from
the Socialist Republic of Vietnam (``Verification Report''), issued
concurrently with these preliminary results.
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'').\3\ 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.
---------------------------------------------------------------------------
\3\ 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.
---------------------------------------------------------------------------
Use of Facts Available
Section 776(a)(2) of the Tariff Act of 1930, as amended (``the
Act''), provides that, if an interested party: (A) Withholds
information that has been requested by the Department; (B) fails to
provide such information in a timely manner or in the form or manner
requested subject to sections 782(c)(1) and (e) of the Act; (C)
significantly impedes a proceeding under the antidumping statute; or
(D) provides such information but the information cannot be verified,
the Department shall, subject to subsection 782(d) of the Act, use
facts otherwise available in reaching the applicable determination.
Section 782(c)(1) of the Act provides that if an interested party
``promptly after receiving a request from {the Department{time} for
information, notifies {the Department{time} that such party is unable
to submit the information requested in the requested form and manner,
together with a full explanation and suggested alternative form in
which such party is able to submit the information,'' the Department
may modify the requirements to avoid imposing an unreasonable burden on
that party.
Section 782(d) of the Act provides that, if the Department
determines that a response to a request for information does not comply
with the request, the Department will inform the person submitting the
response of the nature of the deficiency and shall, to the extent
practicable, provide that person the opportunity to remedy or explain
the deficiency. If that person submits further information that
continues to be unsatisfactory, or this information is not submitted
within the applicable time limits, the Department may, subject to
section 782(e), disregard all or part of the original and subsequent
responses, as appropriate.
Section 782(e) of the Act states that the Department shall not
decline to consider information deemed ``deficient'' under section
782(d) if: (1) The information is submitted by the established
deadline; (2) the information can be verified; (3) the information is
not so incomplete that it cannot serve as a reliable basis for reaching
the applicable determination; (4) the interested party has demonstrated
that it acted to the best of its ability; and (5) the information can
be used without undue difficulties.
Furthermore, section 776(b) of the Act states that if the
Department ``finds that an interested party has failed to cooperate by
not acting to the best of its ability to comply with a request for
information from the administering authority or the Commission, the
administering authority or the Commission * * *, in reaching the
applicable determination under this title, may use an inference that is
adverse to the interests of that party in selecting from among the
facts otherwise available.'' See also Statement of Administrative
Action (SAA) accompanying the Uruguay Round Agreements Act (URAA), H.R.
Rep. No. 103-316, Vol. 1 at 870 (1994).
For these preliminary results, in accordance with sections
776(a)(2)(A) through (D) of the Act, we have determined that the use of
adverse facts available (``AFA'') is warranted for NTSF because of an
unreported labor amounts found at verification. See Verification Report
at 21. As partial AFA, we are we are adding the unreported labor
amounts from November 2008 (the highest usage month for these
unreported categories of labor) to NTSF's labor factor. See Analysis of
the Preliminary Results of the Antidumping
[[Page 4352]]
Duty New Shipper Review of Certain Frozen Fish Fillets from the
Socialist Republic of Vietnam (``Vietnam''): NTSF Seafoods Joint Stock
Company (``NTSF''), dated January 19, 2010.
Non-Market Economy Country Status
In every case conducted by the Department involving Vietnam,
Vietnam has been treated as a non-market (``NME'') country. In
accordance with section 771(18)(C)(i) of the Act, any determination
that a foreign country is an NME country shall remain in effect until
revoked by the administering authority. See Certain Frozen Fish Fillets
From the Socialist Republic of Vietnam: Final Results of the
Antidumping Duty Administrative Review and New Shipper Reviews, 74 FR
11349 (March 17, 2009) (``4th AR Final Results''). None of the parties
to this proceeding has contested such treatment. Accordingly, we
calculated normal value (``NV'') in accordance with section 773(c) of
the Act, which applies to NME countries.
Separate Rate Determinations
A designation as an NME remains in effect until it is revoked by
the Department. See section 771(18)(C) of the Act. Accordingly, there
is a rebuttable presumption that all companies within Vietnam are
subject to government control and, thus, should be assessed a single
antidumping duty rate. It is the Department's standard policy to assign
all exporters of the merchandise subject to review in NME countries a
single rate unless an exporter can affirmatively demonstrate an absence
of government control, both in law (de jure) and in fact (de facto),
with respect to exports. To establish whether a company is sufficiently
independent to be entitled to a separate, company-specific rate, the
Department analyzes each exporting entity in an NME country under the
test established in the Final Determination of Sales at Less than Fair
Value: Sparklers from the People's Republic of China, 56 FR 20588 (May
6, 1991) (``Sparklers''), as amplified by the Notice of Final
Determination of Sales at Less Than Fair Value: Silicon Carbide from
the People's Republic of China, 59 FR 22585 (May 2, 1994) (``Silicon
Carbide'').
A. Absence of De Jure Control
The Department considers the following de jure criteria in
determining whether an individual company may be granted a separate
rate: (1) An absence of restrictive stipulations associated with an
individual exporter's business and export licenses; and (2) any
legislative enactments decentralizing control of companies.
In this review, NTSF submitted complete responses to the separate
rates section of the Department's NME questionnaire. The evidence
submitted by NTSF includes government laws and regulations on corporate
ownership, business licenses, and narrative information regarding the
company's operations and selection of management. The evidence provided
by NTSF supports a finding of a de jure absence of government control
over its export activities. We have no information in this proceeding
that would cause us to reconsider this determination. Thus, we believe
that the evidence on the record supports a preliminary finding of an
absence of de jure government control based on: (1) an absence of
restrictive stipulations associated with the exporter's business
license; and (2) the legal authority on the record decentralizing
control over the respondents.
B. Absence of De Facto Control
The absence of de facto government control over exports is based on
whether the Respondent: (1) Sets its own export prices independent of
the government and other exporters; (2) retains the proceeds from its
export sales and makes independent decisions regarding the disposition
of profits or financing of losses; (3) has the authority to negotiate
and sign contracts and other agreements; and (4) has autonomy from the
government regarding the selection of management. See Silicon Carbide,
59 FR at 22587; Sparklers, 56 FR at 20589; see also Notice of Final
Determination of Sales at Less Than Fair Value: Furfuryl Alcohol from
the People's Republic of China, 60 FR 22544, 22545 (May 8, 1995).
In its questionnaire responses, NTSF submitted evidence indicating
an absence of de facto government control over its export activities.
Specifically, this evidence indicates that: (1) NTSF sets its own
export prices independent of the government and without the approval of
a government authority; (2) NTSF retains the proceeds from its sales
and makes independent decisions regarding the disposition of profits or
financing of losses; (3) NTSF has a general manager, branch manager or
division manager with the authority to negotiate and bind the company
in an agreement; (4) the general manager is selected by the board of
directors or company employees, and the general manager appoints the
deputy managers and the manager of each department; and (5) there is no
restriction on any of the company's use of export revenues. Therefore,
the Department preliminarily finds that NTSF has established prima
facie that they qualify for separate rates under the criteria
established by Silicon Carbide and Sparklers.
New Shipper Review Bona Fide Analysis
Consistent with the Department's practice, we investigated the bona
fide nature of the sales made by NTSF in this new shipper review. We
found that the new shipper sales by NTSF were made on a bona fide
basis. Based on our investigation into the bona fide nature of the
sales, the questionnaire responses submitted by NTSF, and our
verification, as well the company's eligibility for separate rates (see
Separate Rates Determination section above), we preliminarily determine
that NTSF has met the requirements to qualify as a new shipper during
this POR. Therefore, for the purposes of these preliminary results of
review, we are treating NTSF's sales of subject merchandise to the
United States as appropriate transactions for this new shipper
review.\4\
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\4\ For more detailed discussion of this issue, please see
Memorandum from Javier Barrientos, Case Analyst, Office 9, through
Alex Villanueva, Program Manager, Office 9: Bona Fide Nature of the
Sale in the Antidumping Duty New Shipper Review of Certain Frozen
Fish Fillets from the Socialist Republic of Vietnam: NTSF Seafoods
Joint Stock Co., dated January 19, 2009.
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Surrogate Country
When the Department is investigating imports from an NME country,
section 773(c)(1) of the Act directs it to base NV, in most
circumstances, on the NME producer's factors of production (``FOPs''),
valued in a surrogate market economy country or countries considered to
be appropriate by the Department. In accordance with section 773(c)(4)
of the Act, in valuing the FOPs, the Department shall utilize, to the
extent possible, the prices or costs of FOPs in one or more market
economy countries that are: (1) at a level of economic development
comparable to that of the NME country; and (2) significant producers of
comparable merchandise.
The Department determined that Bangladesh, Pakistan, India, Sri
Lanka, Philippines and Indonesia are countries comparable to Vietnam in
terms of economic development.\5\ Moreover, it is the Department's
practice to select an
[[Page 4353]]
appropriate surrogate country based on the availability and reliability
of data from the countries. See Department Policy Bulletin No. 04.1:
Non-Market Economy Surrogate Country Selection Process (March 1, 2004)
(``Surrogate Country Policy Bulletin''). Since the less-than-fair-value
investigation, we have determined that Bangladesh is comparable to
Vietnam in terms of economic development and has surrogate value data
that is available and reliable. In this proceeding, we received
comments regarding surrogate country selection. However, parties did
not provide information in this review that would warrant a change in
the Department's selection of Bangladesh from the prior segments. See
Memorandum to the File, through James C. Doyle, Office Director, Office
9, Import Administration, from Javier Barrientos, Senior Case Analyst,
Subject: Antidumping Duty New Shipper Review of Certain Frozen Fish
Fillets from the Socialist Republic of Vietnam: Selection of a
Surrogate Country (January 19, 2009). Thus, we continue to find that
Bangladesh is the appropriate surrogate country here because Bangladesh
is at a similar level of economic development pursuant to section
773(c)(4) of the Act, is a significant producer of comparable
merchandise, and has reliable, publicly available data representing a
broad-market average.
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\5\ See Memorandum from Kelley Parkhill, Acting Director, Office
of Policy, to Alex Villanueva, Program Manager, AD/CVD Enforcement,
Office 9: Request for a list of Surrogate Countries for a New
Shipper Review of the Antidumping Duty Order on Certain Frozen Fish
Fillets (``Fish Fillets'') from the Socialist Republic of Vietnam,
dated December 18, 2009.
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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.
Affiliation
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 or director of an organization and such
organization;
(C) Partners;
(D) Employer and employee;
(E) Any person directly or indirectly owning, controlling, or
holding with power to vote, 5 percent or more of the outstanding voting
stock or shares of any organization and such organization;
(F) Two or more persons directly or indirectly controlling,
controlled by, or under common control with, any person;
(G) Any person who controls any other person and such other person.
Additionally, section 771(33) of the Act stipulates that: ``For
purposes of this paragraph, a person shall be considered to control
another person if the person is legally or operationally in a position
to exercise restrain or direction over the other person.''
We preliminarily find Nha Trang Seafoods Inc. (``NTSI'') and NTSF
to be affiliated parties within the meaning of section 771(33)(E) of
the Act, based on ownership. NTSF wholly owns NTSI. See Verification
Report at 3. In addition, the director of NTSF is the director of NTSI.
Id. at 6 and verification exhibit NTST-1. Therefore, for these
preliminary results we will use the constructed export price (``CEP'')
price paid, through NTSI, the U.S. importer, by its first unaffiliated
U.S. customer of subject merchandise during the POR.
U.S. Price
Constructed Export Price
For NTSF, we based the U.S. price on CEP in accordance with section
772(b) of the Act, for sales made on behalf of NTSF by its U.S.
affiliate, NTSI, to an unaffiliated purchaser. We based CEP on packed
and delivered prices to the first unaffiliated purchaser in the United
States. Where appropriate, we made deductions from the starting price
(gross unit price) for foreign movement expenses, international
movement expenses, U.S. movement expenses, and appropriate selling
adjustments, in accordance with section 772(c)(2)(A) of the Act. 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. We deducted, where appropriate, commissions, inventory
carrying costs, credit expenses, and indirect selling expenses.
We reviewed the movement expenses incurred in Vietnam by NTSF and
find that they were provided by an NME vendor or paid for using
Vietnamese currency. Thus, we based the deduction of these movement
charges on surrogate values. See Memorandum to the File through Alex
Villanueva, Program Manager, Office 9 from Javier Barrientos, Case
Analyst, Office 9: Antidumping Duty New Shipper Review of Certain
Frozen Fish Fillets from the Socialist Republic of Vietnam: Surrogate
Values for the Preliminary Results, dated January 19, 2009 (``Surrogate
Values Memo'') for details regarding the surrogate values for movement
expenses.
Normal Value
1. Methodology
Section 773(c)(1)(B) of the Act provides that the Department shall
determine the NV using a FOP methodology if the merchandise is exported
from an NME country and the information does not permit the calculation
of NV using home-market prices, third-country prices, or constructed
value under section 773(a) of the Act. The Department bases NV on the
FOPs because the presence of government controls on various aspects of
NMEs renders price comparisons and the calculation of production costs
invalid under the Department's normal methodologies.
Section 773(c)(1) of the Act provides that the Department shall
determine the NV using a factors-of-production methodology if: (1) the
merchandise is exported from a non-market economy country; and (2) the
information does not permit the calculation of NV using home-market
prices, third-country prices, or constructed value under section 773(a)
of the Act.
NTSF reported the inputs beginning with the food-size fish because
it is only a processor of fish fillets and had no hatchery or farming
FOPs during the POR. Therefore, it only reported FOPs associated with
the processing and packing stages of production. As such, the
Department will account for all of NTSF's reported inputs in the normal
value calculation.
2. Factor Valuations
In accordance with section 773(c) of the Act, we calculated NV
based on FOPs reported by NTSF during the POR. To calculate NV, we
multiplied the reported per-unit factor-consumption rates by publicly
available surrogate values. In selecting the surrogate values, we
considered the quality, specificity, and contemporaneity of the data.
As appropriate, we adjusted input prices by including freight costs to
make them delivered prices. Specifically, we added to the surrogate
values a surrogate freight cost, and in the case of import statistics
surrogate values, using the shorter of the reported distance from the
domestic supplier to the factory of production or the distance from the
nearest seaport to the factory of production where appropriate. This
adjustment is in accordance with court decision in Sigma Corp. v.
United States, 24 C.I.T. 97, 86 F.Supp 2d 1344 (CIT 2000). Where we did
not use import statistics, we calculated freight based on the reported
distance from the supplier to the factory.
[[Page 4354]]
It is the Department's practice to calculate price index adjustors
to inflate or deflate, as appropriate, surrogate values that are not
contemporaneous with the POR using the wholesale price index (``WPI'')
for the subject country. See Notice of Preliminary Determination of
Sales at Less Than Fair Value and Postponement of Final Determination:
Hand Trucks and Certain Parts Thereof from the People's Republic of
China, 69 FR 29509 (May 24, 2004). However, in this case, a WPI was not
available for Bangladesh. Therefore, where publicly available
information contemporaneous with the POR with which to value factors
could not be obtained, surrogate values were adjusted using the
Consumer Price Index rate for Bangladesh, or the WPI for India (for
certain surrogate values where Bangladeshi data could not be obtained),
as published in the International Financial Statistics of the
International Monetary Fund.
Bangladeshi and other surrogate values denominated in foreign
currencies were converted to USD using the applicable average exchange
rate based on exchange rate data from the Department's Web site.
For further details regarding the surrogate values used for these
preliminary results, see the Surrogate Values Memo.
Preliminary Results of the Review
The Department has determined that the following preliminary
dumping margins exist for the period August 1, 2008, through January
31, 2009:
Certain Frozen Fish Fillets From Vietnam
------------------------------------------------------------------------
Weighted-
Manufacturer/Exporter Average Margin
(Percent)
------------------------------------------------------------------------
NTSF/NTSI.............................................. 0.00
------------------------------------------------------------------------
Disclosure
The Department will disclose to parties of this proceeding the
calculations performed in reaching the preliminary results within five
days of the date of publication of this notice in accordance with 19
CFR 351.224(b).
Comments
In accordance with 19 CFR 351.301(c)(3)(ii), for the final results
of this administrative review, interested parties may submit publicly
available information to value FOPs within 20 days after the date of
publication of these preliminary results. Interested parties must
provide the Department with supporting documentation for the publicly
available information to value each FOP. Additionally, in accordance
with 19 CFR 351.301(c)(1), for the final results of this administrative
review, interested parties may submit factual information to rebut,
clarify, or correct factual information submitted by an interested
party within ten days of the applicable deadline for submission of such
factual information. However, the Department notes that 19 CFR
351.301(c)(1) permits new information only insofar as it rebuts,
clarifies, or corrects information recently placed on the record.\6\
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\6\ See Glycine from the People's Republic of China: Final
Results of Antidumping Duty Administrative Review and Final
Rescission, in Part 72 FR 58809 (October 17, 2007), and accompanying
Issues and Decision Memorandum at Comment 2.
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Interested parties may submit case briefs and/or written comments
no later than 30 days after the date of publication of these
preliminary results of this new shipper review. See 19 CFR
351.309(c)(ii). Rebuttal briefs and rebuttals to written comments,
limited to issues raised in such briefs or comments, may be filed no
later than five days after the deadline for submitting the case briefs.
See 19 CFR 351.309(d). The Department requests that interested parties
provide an executive summary of each argument contained within the case
briefs and rebuttal briefs.
Any interested party may request a hearing within 30 days of
publication of these preliminary results. See 19 CFR 351.310(c).
Requests should contain the following information: (1) The party's
name, address, and telephone number; (2) the number of participants;
and (3) a list of the issues to be discussed. Oral presentations will
be limited to issues raised in the briefs. If we receive a request for
a hearing, we plan to hold the hearing seven days after the deadline
for submission of the rebuttal briefs at the U.S. Department of
Commerce, 14th Street and Constitution Avenue, NW., Washington, DC
20230.
The Department intends to issue the final results of this new
shipper review, which will include the results of its analysis raised
in any such comments, within 90 days of publication of these
preliminary results, pursuant to section 751(a)(2)(B)(iv) of the Act.
Assessment Rates
Upon completion of the final results, pursuant to 19 CFR
351.212(b), the Department will determine, and CBP shall assess,
antidumping duties on all appropriate entries on a per-unit basis.\7\
The Department intends to issue assessment instructions to CBP 15 days
after the date of publication of the final results of review. If these
preliminary results are adopted in our final results of review, the
Department shall determine, and CBP shall assess, antidumping duties on
all appropriate entries. Pursuant to 19 CFR 351.212(b)(1), we will
calculate importer-specific (or customer) per-unit duty assessment
rates. We will instruct CBP to assess antidumping duties on all
appropriate entries covered by this review if any importer-specific
assessment rate calculated in the final results of this is above de
minimis.
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\7\ We divided the total dumping margins (calculated as the
difference between NV and 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.
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Cash-Deposit Requirements
The following cash deposit requirements will be effective upon
publication of the final results of this new shipper review for all
shipments of subject merchandise from NTSF 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 NTSF, the cash deposit rate will
be $0.00/Kg.; (2) for subject merchandise exported by NTSF but not
manufactured by NTSF, the cash deposit rate will continue to be the
Vietnam-wide rate (i.e., 63.88 percent); and (3) for subject
merchandise manufactured by NTSF, but exported by any other party, the
cash deposit rate will be the rate applicable to the exporter. If the
cash deposit rate calculated in the final results is zero or de
minimis, no cash deposit will be required for those specific producer-
exporter combinations. These cash deposit requirements, when imposed,
shall remain in effect until further notice.
Notification to Importers
This notice serves as a preliminary reminder to importers of its
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.
[[Page 4355]]
We are issuing and publishing this determination in accordance with
sections 751(a)(2)(B) and 777(i) of the Act, and 19 CFR 351.214(h) and
351.221(b)(4).
Dated: January 19, 2010.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 2010-1625 Filed 1-26-10; 8:45 am]
BILLING CODE 3510-DS-P
