Certain Frozen Fish Fillets From the Socialist Republic of Vietnam: Preliminary Results of New Shipper Review, 4350-4355 [2010-1625]

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The VerDate Nov<24>2008 16:22 Jan 26, 2010 Jkt 220001 PO 00000 Frm 00015 Fmt 4703 Sfmt 4703 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 E:\FR\FM\27JAN1.SGM 27JAN1 Federal Register / Vol. 75, No. 17 / Wednesday, January 27, 2010 / Notices 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. srobinson on DSKHWCL6B1PROD with NOTICES 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’’). VerDate Nov<24>2008 16:22 Jan 26, 2010 Jkt 220001 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. PO 00000 Frm 00016 Fmt 4703 Sfmt 4703 4351 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 E:\FR\FM\27JAN1.SGM 27JAN1 4352 Federal Register / Vol. 75, No. 17 / Wednesday, January 27, 2010 / Notices 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 srobinson on DSKHWCL6B1PROD with NOTICES 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 VerDate Nov<24>2008 16:22 Jan 26, 2010 Jkt 220001 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. PO 00000 Frm 00017 Fmt 4703 Sfmt 4703 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. E:\FR\FM\27JAN1.SGM 27JAN1 Federal Register / Vol. 75, No. 17 / Wednesday, January 27, 2010 / Notices 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. srobinson on DSKHWCL6B1PROD with NOTICES 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; VerDate Nov<24>2008 16:22 Jan 26, 2010 Jkt 220001 (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. PO 00000 Frm 00018 Fmt 4703 Sfmt 4703 4353 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 27JAN1 4354 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 Frm 00019 Fmt 4703 Sfmt 4703 E:\FR\FM\27JAN1.SGM 27JAN1 4355 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]


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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

[[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.
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    \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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \6\ See Glycine from the People's Republic of China: Final 
Results of Antidumping Duty Administrative Review and Final 
Rescission, in Part 72 FR 58809 (October 17, 2007), and accompanying 
Issues and Decision Memorandum at Comment 2.
---------------------------------------------------------------------------

    Interested parties may submit case briefs and/or written comments 
no later than 30 days after the date of publication of these 
preliminary results of this new shipper review. See 19 CFR 
351.309(c)(ii). Rebuttal briefs and rebuttals to written comments, 
limited to issues raised in such briefs or comments, may be filed no 
later than 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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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