Certain Frozen Fish Fillets From the Socialist Republic of Vietnam: Notice of Preliminary Results and Partial Rescission of the Sixth Antidumping Duty Administrative Review and Sixth New Shipper Review, 56062-56070 [2010-23001]

Download as PDF 56062 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Notices LIST OF PETITIONS RECEIVED BY EDA FOR CERTIFICATION OF ELIGIBILITY TO APPLY FOR TRADE ADJUSTMENT ASSISTANCE—Continued [7/29/2010 through 9/8/2010] Date accepted for investigation Firm name Address Buffelen Woodworking Company. C-Thru Ruler Company ............ 1901 Taylor Way, Tacoma, WA 98421. 6 Britton Drive, Bloomfield, CT 06002. Custom Machine, LLC .............. 30 Nashua Street, Woburn, MA 01801. 280 Franklin Street, Bristol, RI 02809. 8/27/2010 34700 Grand River Avenue, Farmington Hills, MI 48335. 9/7/2010 3050 Campus Drive #200, Hatfield, PA 19440. P.O. Box 63820 Industrial Way, Cornish, ME 04020. 200 Clinton Street, Springfield, VT 05156. 6368 Dean Parkway, Ontario, NY 14519. 9/7/2010 Pacific Trail Manufacturing, Inc 6532 SE. Crosswhite Portland, OR 97206. Way, 9/3/2010 Parlec, Inc ................................. 101 Perinton Parkway, Fairport, NY 14450. 7/29/2010 Porta-Nails, Inc ......................... 4235 Hwy 421 N, Currie, NC 28435. P.O. Box 13409, 3251 Abbeville Highway, Anderson, SC 29624. 9/1/2010 ES Products, LLC ..................... Exotic Rubber & Plastics Corporation, dba Exotic Automation & Supply. Fiber-Line, Inc ........................... Heli Modified, Inc ...................... NBC Solid Surfaces, Inc ........... OptiPro Systems, LLC .............. srobinson on DSKHWCL6B1PROD with NOTICES Roylco, Inc ................................ Any party having a substantial interest in these proceedings may request a public hearing on the matter. A written request for a hearing must be submitted to the Trade Adjustment Assistance for Firms Division, Room 7106, Economic Development Administration, U.S. Department of Commerce, Washington, DC 20230, no later than ten (10) calendar days following publication of this notice. Please follow the requirements set forth in EDA’s regulations at 13 CFR 315.9 for procedures to request a public hearing. The Catalog of Federal Domestic Assistance official number and title for the program under which these petitions are submitted is 11.313, Trade Adjustment Assistance for Firms. Dated: September 9, 2010. Miriam J. Kearse, Program Team Lead. [FR Doc. 2010–22956 Filed 9–14–10; 8:45 am] BILLING CODE 3510–24–P VerDate Mar<15>2010 18:57 Sep 14, 2010 Jkt 220001 Products 9/7/2010 The firm manufactures wooden doors. 9/7/2010 The firm manufacturers various stencils, vinyl lettering and oil board lettering. The firm also manufactures rulers, drafting supplies, plastic rulers and various templates. The firm manufactures precision commercial, medical and alternative energy components and assemblies. The firm manufactures roofing fasteners for the attachment of an initial layer of a multi-layer membrane system to low slope, low density roof decks. The firm manufactures rubber and plastic molded parts and gaskets. The firm also distributes power units, cylinders, valves, servo controls, and fittings. The firm manufactures coated fibers and FRP rods. 8/31/2010 9/7/2010 9/8/2010 9/3/2010 9/7/2010 The firm manufacturers ergonomically correct replacement motorcycle handlebar and risers. The firm manufactures counter tops made with granite, corian, quartz, marble and wood. The firm manufactures optical grinding, polishing and measuring machines and performs government research. The firm also distributes machine tools, CAS/CAM software, and measuring systems. The firm fabricates specialized chain saws that cut full units of various wood products and paper rolls to shorter lengths than the originals. The firm manufactures machine tool accessories including tool holders, boring systems, tapping systems, and tool presetters, The firm produces manual and pneumatic nail and staple guns. The firm produces educational and hobby/craft kits. DEPARTMENT OF COMMERCE International Trade Administration [A–552–801] Certain Frozen Fish Fillets From the Socialist Republic of Vietnam: Notice of Preliminary Results and Partial Rescission of the Sixth Antidumping Duty Administrative Review and Sixth New Shipper Review Import Administration, International Trade Administration, Department of Commerce. SUMMARY: The Department of Commerce (‘‘Department’’) is conducting an administrative review and new shipper review of the antidumping duty order on certain frozen fish fillets from the Socialist Republic of Vietnam (‘‘Vietnam’’). See Notice of Antidumping Duty Order: Certain Frozen Fish Fillets From the Socialist Republic of Vietnam, 68 FR 47909 (August 12, 2003) (‘‘Order’’). The Department has preliminarily determined that Vinh AGENCY: PO 00000 Frm 00012 Fmt 4703 Sfmt 4703 Hoan Corporation (‘‘Vinh Hoan’’),1 Vinh Quang Fisheries Corporation (‘‘Vinh Quang’’) and CUU Long Fish Joint Stock Company (‘‘CL-Fish’’) sold subject merchandise at less than normal value (‘‘NV’’) during the period of review (‘‘POR’’), August 1, 2008, through July 31, 2009. DATES: Effective Date: September 15, 2010. FOR FURTHER INFORMATION CONTACT: Emeka Chukwudebe or Javier Barrientos, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and 1 The Department is treating Vinh Hoan, Van Duc Food Export Joint Company (‘‘Van Duc’’) and Van Duc Tien Giang (‘‘VD TG’’) as a single entity. Section 351.401(f) of the Department’s regulations define single entities as those affiliated producers who have production facilities for similar or identical products that would not require substantial retooling of either facility in order to restructure manufacturing priorities and the Secretary concludes that there is a significant potential for the manipulation of price or production. For further analysis, see Affiliations and Collapsing section below. E:\FR\FM\15SEN1.SGM 15SEN1 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Notices Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482–0219 or (202) 482–2243, respectively. SUPPLEMENTARY INFORMATION: srobinson on DSKHWCL6B1PROD with NOTICES Case History On July 31, 2009, pursuant to section 19 CFR 351.214(c), the Department received a new shipper review request from CL-Fish. On August 3, 2009, the Department published a notice of an opportunity to request an administrative review of the Order. See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity To Request Administrative Review, 74 FR 38397 (August 3, 2009). By August 31, 2009, the Department received review requests for 22 companies from Petitioners 2 and certain individual companies. On September 22, 2009, the Department initiated an antidumping duty administrative review on frozen fish fillets from Vietnam covering the period, August 1, 2008, through July 31, 2009. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 74 FR 48224 (September 22, 2009) (‘‘Initiation Notice’’). The Department initiated this review with respect to 22 companies.3 On September 25, 2009, the Department initiated the sixth antidumping duty new shipper review covering the same period as the administrative review. For this POR, the company to be reviewed is CL-Fish. See Certain Frozen Fish Fillets from the 2 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, and Simmons Farm Raised Catfish, Inc. 3 These companies include: (1) An Giang Fisheries Import and Export Joint Stock Company (aka Agifish or; AnGiang Fisheries Import and Export); (2) Anvifish Co., Ltd.; (3) Anvifish Joint Stock Company (‘‘Anvifish JSC’’); (4) Asia Commerce Fisheries Joint Stock Company (aka Acomfish JSC) (‘‘Acomfish’’); (5) Binh An Seafood Joint Stock Co. (‘‘Binh An’’); (6) Cadovimex II Seafood Import-Export and Processing Joint Stock Company; (aka Cadovimex II) (‘‘Cadovimex II’’); (7) CL–Fish; (8) East Sea Seafoods Limited Liability Company (formerly known as East Sea Seafoods Joint Venture Co., Ltd.) (‘‘ESS LLC’’); (9) East Sea Seafoods Joint Venture Co., Ltd. (‘‘ESS JVC’’); (10) Hiep Thanh Seafood Joint Stock Co. (‘‘Hiep Thanh’’); (11) Nam Viet Company Limited (aka NAVICO) (‘‘NAVICO’’); (12) NTSF Seafoods Joint Stock Company (aka NTSF) (‘‘NTSF’’); (13) Panga Mekong Co., Ltd. (‘‘Panga Mekong’’); (14) QVD Food Company, Ltd. (‘‘QVD’’); (15) QVD Dong Thap Food Co., Ltd. (‘‘QVD DT’’); (16) Saigon-Mekong Fishery Co., Ltd. (aka SAMEFICO) (‘‘SAMEFICO’’); (17) Southern Fishery Industries Company, Ltd. (aka South Vina); (18) Thien Ma Seafood Co., Ltd. (‘‘Thien Ma’’); (19) Thuan Hung Co., Ltd. (aka THUFICO) (‘‘Thuan Hung’’); (20) Vinh Hoan Corporation; (21) Vinh Hoan Company, Ltd.; and (22) Vinh Quang. VerDate Mar<15>2010 18:57 Sep 14, 2010 Jkt 220001 Socialist Republic of Vietnam: Initiation of New Shipper Review, 74 FR 48908, (September 25, 2009). On November 10, 2009, the Department issued a letter to all interested parties informing them of its decision to select as mandatory respondents QVD and Vinh Hoan, the two largest exporters of subject merchandise during the POR, based on U.S. Customs and Borders Protection (‘‘CBP’’) import data. See Memorandum to the File from Javier Barrientos, Senior Analyst, through Alex Villanueva, Program Manager, Antidumping Duty Administrative Review of Certain Frozen Fish Fillets from the Socialist Republic of Vietnam (‘‘Vietnam’’): Selection of Respondents for Individual Review (‘‘First Respondent Selection Memo’’), dated November 10, 2009. On January 7, 2010, QVD withdrew its request for an administrative review. On January 8, 2010, Anvifish JSC withdrew its request for an administrative review. On January 8, 2010, Petitioners partially withdrew their August 31, 2009, request for an administrative review for 13 companies including QVD.4 On January 29, 2010, the Department determined to individually examine the voluntary respondent, Vinh Quang. See Memorandum to the File from Emeka Chukwudebe, Case Analyst, through Alex Villanueva, Program Manager, Antidumping Duty Administrative Review of Certain Frozen Fish Fillets from the Socialist Republic of Vietnam (‘‘Vietnam’’): Replacement of Mandatory Respondent (‘‘Second Respondent Selection Memo’’), dated January 29, 2010. Between October 13, 2009, and August 12, 2010, new shipper, CL-Fish, submitted responses to the original sections A, C, and D questionnaire and supplemental sections A, C, and D questionnaire. Between November 24, 2009, and August 12, 2010, Vinh Quang submitted responses to the original sections A, C, and D questionnaires and supplemental sections A, C, and D questionnaires. Between December 4, 2009, and August 12, 2010, Vinh Hoan submitted responses to the original sections A, C, and D questionnaires and supplemental sections A, C, and D questionnaires. On January 29, 2010, the Department extended the deadline for parties to file 4 These companies include: (1) Cadovimex II; (2) CL-Fish; (3) Hiep Thanh; (4) NAVICO; (5) NTSF; (6) Panga Mekong; (7) QVD; (8) SAMEFICO; (9) Thien Ma; (10) Thuan Hung; (11) Vinh Quang; (12) QVD DT, and; (13) Anvifish Co., Ltd. However, the Department continued the administrative review with respect to Vinh Quang as this company was chosen as a voluntary respondent. See Second Respondent Selection Memo. PO 00000 Frm 00013 Fmt 4703 Sfmt 4703 56063 surrogate country comments and surrogate value data. See Memorandum to the File, from Emeka Chukwudebe, Case Analyst, through Alex Villanueva, Program Manager, Administrative Review of Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Extension Request for Surrogate Country Selection Comments and Surrogate Value Submissions, dated January 29, 2010. On February 12, 2010, the Department tolled all administrative deadlines, including these reviews, by one calendar week. See Tolling of Administrative Deadlines As a Result of the Government Closure During the Recent Snowstorm, dated February 12, 2010, (‘‘Tolling Memo’’). On March 9, 2010, the Department aligned the sixth new shipper review with the sixth administrative review. See Memorandum to the File, from Javier Barrientos, Senior Case Analyst, through Alex Villanueva, Program Manager, Alignment of 6th New Shipper Review of Certain Frozen Fish Fillets from the Socialist Republic of Vietnam with the 6th Administrative Review of Certain Frozen Fish Fillets from the Socialist Republic of Vietnam, dated March 9, 2010. Between April 2, 2010, and July 9, 2010, the Department received surrogate country and value comments and rebuttal comments from interested parties. On April 22, 2010, the Department partially extended the deadline for the preliminary results in these reviews. See Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Extension of Time Limit for Preliminary Results of the 6th Antidumping Duty Administrative and 6th New Shipper Reviews, 75 FR 20983 (April 22, 2010). On May 27, 2010, the Department partially rescinded the administrative review with respect to 13 companies.5 See Certain Frozen Fish Fillets From the Socialist Republic of Vietnam: Notice of Partial Rescission of the Sixth Antidumping Duty Administrative Review, 75 FR 29726 (May 27, 2010) (‘‘Partial Rescission Notice’’). Therefore, nine companies remain in this administrative review: (1) Agifish; (2) Acomfish; (3) Anvifish JSC; 6 (4) Binh An; (5) East Sea Seafoods Limited Liability Company (formerly known as East Sea Seafoods Joint Venture Co., 5 These companies include: (1) Cadovimex II; (2) CL-Fish; (3) Hiep Thanh; (4) NAVICO; (5) NTSF; (6) Panga Mekong; (7) QVD; (8) SAMEFICO; (9) Thien Ma; (10) Thuan Hung; (11) Vinh Quang; (12) QVD DT; and (13) Anvifish Co., Ltd. 6 Although the Department noted on January 8, 2010, Anvifish JSC withdrew its request for an administrative review, in the Partial Rescission Notice, the Department stated there was no information on the record indicating Anvifish JSC was assigned a separate rate. E:\FR\FM\15SEN1.SGM 15SEN1 56064 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Notices Ltd.); (6) Hiep Thanh; (7) South Vina; (8) Vinh Hoan; and (9) Vinh Quang. On July 16, 2010, Anvifish JSC placed information on the record identifying its name change in the fourth administrative review from Anvifish Co., Ltd. to Anvifish JSC. On July 30, 2010, the Department published in the Federal Register a second notice fully extending the time period for issuing the preliminary results in these reviews. See Certain Frozen Fish Fillets From the Socialist Republic of Vietnam: Extension of Time Limit for Preliminary Results of the 6th Antidumping Duty Administrative and 6th New Shipper Reviews, 75 FR 44938 (July 30, 2010). The preliminary results are currently due on September 7, 2010, (inclusive of the seven day extension per the Tolling Memo). Vietnam-Wide Entity As discussed above, in this administrative review we limited the selection of respondents using CBP import data. See First Respondent Selection Memo at Attachment I. In this case, we made available to the companies who were not selected, the separate rates application and certification, which were put on the Department’s Web site. See Initiation Notice. Those companies which did not apply for separate rates will continue to be part of the Vietnam-wide entity. Because some parties for which a review was requested did not apply for separate rate status, the Vietnam-wide entity is considered to be part of this review. Preliminary Partial Rescission of Administrative Review srobinson on DSKHWCL6B1PROD with NOTICES Acomfish and Binh An Pursuant to 19 CFR 351.213(d)(3), the Department has preliminarily determined that Acomfish and Binh An made no shipments of subject merchandise during the POR of this administrative review. On October, 13, 2009, the Department received noshipment certifications from Acomfish and Binh An. However, according to entry statistics obtained from CBP, and placed on the record, Binh An had an entry of subject merchandise during the POR. In the partial rescission of review notice, the Department stated that it would address this claim and any possible rescission in the preliminary results. See Partial Rescission Notice. On January 13, 2010, the Department issued no-shipment inquiries to CBP requesting any information for merchandise manufactured and shipped by either Acomfish or Binh An during the POR. The Department did not receive any response from CBP, thus VerDate Mar<15>2010 18:57 Sep 14, 2010 Jkt 220001 indicating that there were no entries of subject merchandise into the United States exported by these companies. On May 26, 2010, the Department issued a request for the complete entry package document for the shipment made by Binh An during the POR. In addition, on July 9, 2010, the Department issued a supplemental questionnaire to Binh An requesting additional information regarding the subject merchandise entered during the POR. On July 15, 2010, Binh An submitted a response stating that the shipment was for sampling purposes only. Furthermore, our analysis of the CBP entry package was consistent with Binh An’s explanation. The Department therefore found no record evidence indicating that Binh An received financial consideration for this transaction. Id. Consequently, as Acomfish did not export subject merchandise during the POR, and Binh An’s transaction was not considered a sale because it was a sample transaction for no financial consideration, we are preliminarily rescinding the review, in part, with respect to Acomfish and Binh An. Separate Rates Agifish, Anvifish Co., Ltd., Vinh Hoan, QVD, South Vina, and CL-Fish A designation as a non-market economy (‘‘NME’’) remains in effect until it is revoked by the Department. See section 771(18)(C) of the Tariff Act of 1930, as amended (‘‘the Act’’). Accordingly, there is a rebuttable presumption that all companies within Vietnam are subject to government control and, thus, should be assessed a single antidumping duty rate. It is the Department’s standard policy to assign all exporters of the merchandise subject to review in NME countries a single rate unless an exporter can affirmatively demonstrate an absence of government control, both in law (de jure) and in fact (de facto), with respect to exports. To establish whether a company is sufficiently independent to be entitled to a separate, company-specific rate, the Department analyzes each exporting entity in an NME country under the test established in the Final Determination of Sales at Less than Fair Value: Sparklers from the People’s Republic of China, 56 FR 20588 (May 6, 1991) (‘‘Sparklers’’), as amplified by the Notice of Final Determination of Sales at Less Than Fair Value: Silicon Carbide from the People’s Republic of China, 59 FR 22585 (May 2, 1994) (‘‘Silicon Carbide’’). A. Absence of De Jure Control The Department considers the following de jure criteria in determining PO 00000 Frm 00014 Fmt 4703 Sfmt 4703 whether an individual company may be granted a separate rate: (1) An absence of restrictive stipulations associated with an individual exporter’s business and export licenses; and (2) any legislative enactments decentralizing control of companies. Although the Department has previously assigned a separate rate to all of the companies eligible for a separate rate in the instant proceeding, it is the Department’s policy to evaluate separate rates questionnaire responses each time a respondent makes a separate rates claim, regardless of whether the respondent received a separate rate in the past. See Manganese Metal from the People’s Republic of China, Final Results and Partial Rescission of Antidumping Duty Administrative Review, 63 FR 12440 (March 13, 1998). In this review, Agifish, Anvifish Co., Ltd., Vinh Hoan, QVD, and South Vina submitted complete separate rate certifications and applications. CL-Fish provided separate rate information in its new shipper review questionnaire responses. The evidence submitted by these companies includes government laws and regulations on corporate ownership, business licenses, and narrative information regarding the companies’ operations and selection of management. The evidence provided by these companies supports a finding of a de jure absence of government control over their export activities, based on: (1) An absence of restrictive stipulations associated with the exporter’s business license; and (2) the legal authority on the record decentralizing control over the respondents. B. Absence of De Facto Control The absence of de facto government control over exports is based on whether the respondent: (1) Sets its own export prices independent of the government and other exporters; (2) retains the proceeds from its export sales and makes independent decisions regarding the disposition of profits or financing of losses; (3) has the authority to negotiate and sign contracts and other agreements; and (4) has autonomy from the government regarding the selection of management. See Silicon Carbide, 59 FR at 22587; Sparklers, 56 FR at 20589; see also Notice of Final Determination of Sales at Less Than Fair Value: Furfuryl Alcohol from the People’s Republic of China, 60 FR 22544, 22545 (May 8, 1995). In this review, Agifish, Anvifish Co., Ltd., Vinh Hoan, QVD, South Vina, and CL-Fish submitted evidence indicating an absence of de facto government control over their export activities. Specifically, this evidence indicates E:\FR\FM\15SEN1.SGM 15SEN1 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Notices that: (1) Each company sets its own export prices independent of the government and without the approval of a government authority; (2) each company retains the proceeds from its sales and makes independent decisions regarding the disposition of profits or financing of losses; (3) each company has a general manager, branch manager or division manager with the authority to negotiate and bind the company in an agreement; (4) the general managers are selected by the board of directors or company employees, and the general managers appoint the deputy managers and the manager of each department; and (5) there is no restriction on any of the companies’ use of export revenues. Therefore, the Department preliminarily finds that Agifish, Anvifish Co., Ltd., Vinh Hoan, QVD, and South Vina have established that they qualify for separate rates under the criteria established by Silicon Carbide and Sparklers. srobinson on DSKHWCL6B1PROD with NOTICES ESS LLC and ESS JVC ESS LLC requested an administrative review of its entries and on November 24, 2009, submitted a separate rates questionnaire response. A review of CBP data indicated that ESS LLC had no entries during the POR under its own name; instead all of the entries came in under ESS JVC.7 In the prior administrative review, ESS LLC claimed it was a successor-ininterest to ESS JVC. In that review, the Department found that ESS LLC was not the successor-in-interest to ESS JVC, and as such, was not entitled to ESS JVC’s rate.8 This determination was upheld by the Court of International Trade.9 The Department also found that ESS JVC ceased to exist on July 31, 2008. In response to a supplemental questionnaire issued by the Department, ESS LLC explained that although its name does not appear on the CBP entry documents as the exporter, it is the entity that made those sales to the United Stated during the POR. Specifically, ESS LLC argues that the sales documents (e.g., invoices, payment, etc.) were issued on behalf of ESS LLC during the POR. See ESS LLC’s July 14, 2010 Submissions at 3, Exhibits 6–7. Therefore, record evidence supports a finding that the POR entries 7 See First Respondent Selection Memo at attachment I. 8 See Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Final Results of the Antidumping Duty Administrative Review and New Shipper Reviews, 75 FR 12726 (March 17, 2010) (‘‘5th AR and 4th NSR Final’’). 9 East Sea Seafoods LLC, v. United States and Catfish Farmers of America, Court No. 10–00102, Slip Op. 10–62 at 10 (CIT May 27, 2010). ESS LLC has filed a notice of appeal in that case. VerDate Mar<15>2010 18:57 Sep 14, 2010 Jkt 220001 under ESS JVC’s name were, in fact, ESS LLC sales and we will treat them accordingly. Based on the same analysis described above for the other companies and ESS LLC’s separate rate response, we preliminarily find that ESS LLC is entitled to a separate rate in this review. Furthermore, we intend to refer the issue of ESS LLC’s claim that the ESS JVC entries are in fact ESS LLC’s entries during the POR to CBP for further consideration. Use of Facts Available Vinh Quang 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. On July 13, 2010, in response to a supplemental questionnaire from the Department, Vinh Quang explained that it could not provide certain sales to the last unaffiliated U.S. customer because the affiliated U.S. customer stated that it did not have the records available to report the data for these U.S. sales. Although Vinh Quang attempted to collect the information on these sales, it notes that the volume of these sales was less than one percent of total U.S. sales during the POR through that affiliate. For these preliminary results, in accordance with sections 776(a)(2)(B) of the Act, we have determined that the use of neutral facts available (‘‘FA’’) is warranted for Vinh Quang because, even though it did not report these very limited downstream sales from its affiliate, the affiliate provided an explanation of why it wasn’t able to link these very limited sales to purchases by the unaffiliated U.S. customers (i.e., walk-in grocery store customers). See Vinh Quang’s July 13, 2010, submission at 11–12. As partial neutral FA, we will use the weighted-average margin from the rest of the sales used to calculate the dumping margin as the margin for the sales observations in question. See Analysis of the Preliminary Results of the Antidumping Duty Administrative Review of Certain Frozen Fish Fillets from the Socialist Republic of Vietnam Vinh Quang Fisheries Corporation PO 00000 Frm 00015 Fmt 4703 Sfmt 4703 56065 (‘‘Vinh Quang’’) dated September 7, 2010. Rate for Non-Selected Companies In this review there are three companies that are not presently selected for individual examination, ESS LLC, South Vina, and Agifish. The statute and the Department’s regulations do not address the establishment of a rate to be applied to individual companies not selected for examination where the Department limited its examination in an administrative review pursuant to section 777A(c)(2) of the Act. Generally, we have looked to section 735(c)(5) of the Act, which provides instructions for calculating the all-others rate in an investigation, for guidance when calculating the rate for respondents we did not examine in an administrative review. For the exporters subject to this review that were determined to be eligible for separate rate status, but were not selected as mandatory respondents, the Department generally weight-averages the rates calculated for the mandatory respondents, excluding any rates that are zero, de minimis, or based entirely on FA.10 For this administrative review, the Department has calculated positive margins for both the single mandatory respondent, Vinh Hoan, and the voluntary respondent, Vinh Quang. However, it is the Department’s practice to only include the rates calculated for the mandatory respondents when calculating the separate rate for exporters determined to be eligible for separate rate status.11 Accordingly, consistent with our practice for these preliminary results, the Department has preliminarily established a margin for the separate rate respondents based on the rate calculated for the single mandatory respondent, Vinh Hoan. The rate established for the separate rate respondents is a per-unit rate of $4.22 dollars per kilogram. Entities receiving this rate are identified by name in the ‘‘Preliminary Results of Review’’ section of this notice. Scope of the Order The product covered by this Order is frozen fish fillets, including regular, shank, and strip fillets and portions 10 See, e.g., Wooden Bedroom Furniture From the People’s Republic of China: Preliminary Results of Antidumping Duty Administrative Review, Preliminary Results of New Shipper Review and Partial Rescission of Administrative Review, 73 FR 8273, 8279 (February 13, 2008) (unchanged in Wooden Bedroom Furniture from the People’s Republic of China: Final Results of Antidumping Duty Administrative Review and New Shipper Review, 73 FR 49162 (August 20, 2008)). 11 See Id. E:\FR\FM\15SEN1.SGM 15SEN1 56066 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Notices thereof, whether or not breaded or marinated, of the species Pangasius Bocourti, Pangasius Hypophthalmus (also known as Pangasius Pangasius), and Pangasius Micronemus. Frozen fish fillets are lengthwise cuts of whole fish. The fillet products covered by the scope include boneless fillets with the belly flap intact (‘‘regular’’ fillets), boneless fillets with the belly flap removed (‘‘shank’’ fillets), boneless shank fillets cut into strips (‘‘fillet strips/finger’’), which include fillets cut into strips, chunks, blocks, skewers, or any other shape. Specifically excluded from the scope are frozen whole fish (whether or not dressed), frozen steaks, and frozen belly-flap nuggets. Frozen whole dressed fish are deheaded, skinned, and eviscerated. Steaks are bone-in, crosssection cuts of dressed fish. Nuggets are the belly-flaps. The subject merchandise will be hereinafter referred to as frozen ‘‘basa’’ and ‘‘tra’’ fillets, which are the Vietnamese common names for these species of fish. These products are classifiable under tariff article codes 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’’).12 This Order covers all frozen fish fillets meeting the above specification, regardless of tariff classification. Although the HTSUS subheading is provided for convenience and customs purposes, our written description of the scope of the Order is dispositive. Non-Market Economy Country Status srobinson on DSKHWCL6B1PROD with NOTICES In every case conducted by the Department involving Vietnam, Vietnam has been treated as a NME country. In accordance with section 771(18)(C)(i) of the Act (‘‘the Act’’), any determination that a foreign country is an NME country shall remain in effect until revoked by the administering authority. See Notice of Final Results of Administrative Review: Certain Frozen Fish Fillets from the Socialist Republic of Vietnam, 73 FR 15479 (March 17, 2008) and accompanying Issues and Decision Memorandum (‘‘3rd AR Final Results’’). None of the parties to this proceeding have contested such treatment. Accordingly, we calculated NV in accordance with section 773(c) of 12 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. VerDate Mar<15>2010 18:57 Sep 14, 2010 Jkt 220001 the Act, which applies to NME countries. Surrogate Country and Surrogate Values On December 18, 2009, the Department sent interested parties a letter setting a deadline to submit comments on surrogate country selection and information pertaining to valuing factors of production (‘‘FOPs’’). Between April, 8, 2010, and August 16, 2010, Vinh Hoan, CL-Fish, the Vietnam Association of Seafood Exporters and Producers (‘‘VASEP’’), and/or Petitioners submitted surrogate country comments, surrogate value data and rebuttal comments. Surrogate Country When the Department is investigating imports from an NME country, section 773(c)(1) of the Act directs it to base NV, in most circumstances, on the NME producer’s FOPs, valued in a surrogate market economy country or countries considered to be appropriate by the Department. In accordance with section 773(c)(4) of the Act, in valuing the FOPs, the Department shall utilize, to the extent possible, the prices or costs of FOPs in one or more market economy countries that are: (1) At a level of economic development comparable to that of the NME country; and (2) significant producers of comparable merchandise. The Department determined that Bangladesh, Pakistan, India, Sri Lanka, the Philippines and Indonesia are countries comparable to Vietnam in terms of economic development.13 As we have stated in prior administrative review determinations, there is no world production data of Pangasius frozen fish fillets available on the record with which the Department can identify producers of identical merchandise. Therefore, absent world production data, the Department’s practice is to compare, wherever possible, data for comparable merchandise and establish whether any economically comparable country was a significant producer.14 In this case, we have determined to use the broader 13 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 October 15, 2009. 14 See Certain Magnesia Carbon Bricks From the People’s Republic of China: Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination, 75 FR 11847 (March 12, 2010), unchanged for the final determination, 75 FR 45468 (August 2, 2010). PO 00000 Frm 00016 Fmt 4703 Sfmt 4703 category of frozen fish fillets data as the basis for identifying producers of comparable merchandise. Therefore, consistent with cases that have similar circumstances as are present here, we obtained export data for each country identified in the surrogate country list. Based on export data from U.N. Comtrade in 2007,15 Bangladesh, the Philippines, Indonesia, India, Sri Lanka, and Pakistan are exporters of frozen fish fillets, and, thus, significant producers. After applying the first two selection criteria, if more than one country remains, it is the Department’s practice to select an appropriate surrogate country based on the availability and reliability of data from those countries. See Department Policy Bulletin No. 04.1: Non-Market Economy Surrogate Country Selection Process (March 1, 2004) (‘‘Surrogate Country Policy Bulletin’’). In this case, the whole fish input is the most significant input because it accounts for the largest percentage of normal value (‘‘NV’’) as fish fillets are produced directly from the whole live fish. As such, we must consider the availability and reliability of the surrogate values for whole fish on the record. This record does not contain any data for whole live fish for Indonesia, India, Sri Lanka, and Pakistan. Therefore, these countries will not be considered for primary surrogate country purposes at this time. However, this record does contain whole fish surrogate value data from both Bangladesh and the Philippines. Bangladesh In the most recently completed segment involving a new shipper review, the Department selected Bangladesh as the surrogate country due to the superior quality of the Bangladeshi data available in the Economics of Aquaculture Feeding Practices in Selected Asian Countries: FAO Technical Paper 505 (Rome, 2007) (‘‘FAO Report’’). See Certain Frozen Fish Fillets from the Socialist Republic of Vietnam, Final Results of Fifth New Shipper Review, 75 38985 (July 7, 2010) and accompanying Issues and Decision Memorandum at Comment 1 (‘‘5th NSR Final’’). In the 5th NSR Final, we found that the whole fish input data from the FAO Report were the best information available to value the fish input because they satisfied the surrogate value selection criteria (e.g., are publicly 15 U.N. Comtrade data from 2006 and 2007 are the only years in which all countries have data for comparison. 2008 and 2009 data contains gaps preventing the Department from making appropriate comparisons. World Trade Atlas data shares a similar problem. See Surrogate Value Memo at Attachment I. E:\FR\FM\15SEN1.SGM 15SEN1 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Notices available, represent a broad market average, are from an approved surrogate country, are specific to the input in question and are tax exclusive),16 even though they are not contemporaneous with the POR. The information on this record with respect to the FAO Report data remains unchanged from the prior new shipper review. srobinson on DSKHWCL6B1PROD with NOTICES The Philippines In the fifth administrative review and fourth new shipper reviews, the Department was concerned with the public availability of the whole fish surrogate data from the Philippines. See 5th AR Final at Comment 1. Subsequent to that segment, the Department again evaluated the public availability of the Philippines data and found that although Petitioners supplemented the record with additional information and documentation, serious concerns remained (e.g., not an official government publication in and of itself, an affidavit not made on behalf of the Philippines government, no discussion of public dissemination, etc.).17 On the record of this review however, Petitioners submitted information clearly generated by a Philippine government agency, on official 16 See e.g., Fresh Garlic from the People’s Republic of China: Final Results and Final Rescission, In Part, of New Shipper Reviews, 74 FR 50952 (October 2, 2009), and accompanying Issues and Decision Memorandum at Comment 5; see also Third Administrative Review of Frozen Warmwater Shrimp From the People’s Republic of China: Final Results and Partial Rescission of Antidumping Duty Administrative Review, 74 FR 46565 (September 10, 2009), and accompanying Issues and Decision Memorandum at Comment 3. 17 In the most recently completed segment, we stated that ‘‘In analyzing the Fish Pond Report, the Department has serious concerns about the public availability of the data. By Petitioners’ own admission, the data are not published as the Fish Pond Report per se, but rather, the Fish Pond Report represents source data to be used in a yetto-be-determined manner for official publication in the Fisheries Situationer. Therefore, the Fish Pond Report is not an official government publication in and of itself, nor is it even an interim government publication. Accordingly, we do not find the Fish Pond Report to be public information. Moreover, we find our concerns in this regard amplified by the observation that the affidavit is not made on behalf of the Philippine government, further underscoring our concerns about the public availability of this information.* * * Furthermore, the document has a hand written title and appears to be incomplete in some of the data fields as discussed below. There is no mention in the affidavit that the data is regularly disseminated in the Fish Pond Report format or whether the affiant is responsible for providing this data to the public. There is no explanation as to whether the affiant provides this data as a regular part of her government job, reducing the likelihood the data as released were subject to the ordinary review and analysis accompanying their inclusion in the Fisheries Situationer. Given these concerns, the Department does not find that this data is publicly available.’’ See 5th NSR Final at Comment 1. VerDate Mar<15>2010 18:57 Sep 14, 2010 Jkt 220001 Philippines government letterhead, and with an explanation of the data collection methods. In addition, they provided a complete copy of the Fisheries Statistics of the Philippines, 2006–2008, published by the Bureau of Agricultural Statistics, Department of Agriculture, (‘‘Fisheries Statistics’’) published in November 2009, which links the Philippines data provided in this and prior segments to an official Philippines government publication. Therefore, the Department no longer has concerns with the public availability of the Philippines data in this segment. Analysis First, we note that both the FAO Report data and the Fisheries Statistics data are publicly available, tax- and duty-exclusive, and from an approved surrogate country. Therefore, we examined each source with respect to the broad market average, specificity, and contemporaneity. With respect to the broad market average, we find that the data from both the FAO Report and the Fisheries Statistics are considered broad market averages. As we have stated in prior reviews, the FAO Report data were obtained directly from 60 fish farmers from a region that produces fish in Bangladesh. However, the FAO Report does state why this particular region was selected (i.e., importance of this region in Pangas farming, the availability of hatchery produced fry, availability of ponds, warm climate, cheap and abundant labor). See FAO Report at 38. Similarly, the Philippines data were collected from 34 respondents (i.e., ‘‘farmers, operators, or caretakers. Other possible respondents are aqua farm traders and persons knowledgeable of aquaculture production in the locality.’’) See Petitioners’ July 9, 2010 Submission at Attachment 1, page 2. Although we recognize that the Philippines data volume is only 12 metric tons, while the Bangladeshi data is 178 metric tons, for these preliminary results, we find that both of these sources are significant broad market averages because they represent national level data of similar quality using similar collection methods (i.e., interviews, questionnaires, etc.). With respect to specificity, the Bangladeshi data in the FAO Report specifically identify the whole live fish examined as Pangasianodon Hypopthalmus, which is one of the fish fillets species identified in the scope of the Order. The Philippines data in the Fisheries Statistics are identified as Pangasius, which is the genus name for the fish fillets subject to the Order. First, we note that Pangasius is a genus name and Pangasianodon Hypopthalmus is a PO 00000 Frm 00017 Fmt 4703 Sfmt 4703 56067 species in that genus. In prior reviews, we used whole fish surrogate value data identified as Pangas and found it comparable to the fish input used by Respondents. See 3rd AR Final Results at Comment 4. In this case, although the whole fish data from Bangladesh are more specific to the input used by the Respondents in producing fish fillets, we note that the record does not contain any information that would lead us to preliminarily determine that any difference between the two sources would necessarily generate a difference in price. Moreover, Pangasianodon Hypopthalmus is considered a component of Pangasius so it is reasonable to find that the Pangasius price from the Philippines in the Fisheries Statistics is likely to include Pangasianodon Hypopthalmus and other comparable species names also listed in the Order. Finally, with respect to contemporaneity, we find that the Philippine data are contemporaneous with the POR as they are based on data collected in calendar year 2008. See Petitioners’ July 9, 2010 Submission at Attachment 1, page 3. The Bangladeshi data in the FAO Report are from calendar year 2005. Therefore, the Philippines data are contemporaneous with the POR, while the Bangladeshi data are not. After examining all the factors considered in selecting the surrogate value for fish as part of our surrogate country analysis, we find that the data available from the Philippines for the whole live fish represent the best surrogate values for these preliminary results. Given that Philippines data are contemporaneous, as equally a broad market average as the Bangladeshi data and of a similar genus of the fish used by the Respondents to produce fish fillets, we preliminarily select the Philippines as the most appropriate surrogate country. However, we hereby invite parties to submit additional comments and data from Bangladesh and the Philippines with respect to fish farming and fisheries that can be considered for the final results. Affiliations and Collapsing Section 771 (33) of the Act provides that: The following persons shall be considered to be ‘affiliated’ or ‘affiliated persons’: (A) Members of a family, including brothers and sisters (whether by the whole or half blood), spouse, ancestors, and lineal descendants; (B) Any officer of director of an organization and such organization; (C) Partners; (D) Employer and employee; E:\FR\FM\15SEN1.SGM 15SEN1 56068 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Notices (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.’’ Finally, according to 19 CFR 351.401(f)(1) and (2), two or more companies may be treated as a single entity for antidumping duty purposes if: (1) The producers are affiliated, (2) the producers have production facilities for similar or identical products that would not require substantial retooling of either facility in order to restructure manufacturing priorities, and (3) there is a significant potential for manipulation of price or production. See 19 CFR 351.401(f)(1) and (2). srobinson on DSKHWCL6B1PROD with NOTICES Vinh Hoan In the final results of the fifth antidumping duty administrative review, the Department determined that Vinh Hoan and Van Duc Food Export Joint Company (‘‘Van Duc’’) should be treated as a single entity. See 5th AR Final, and accompanying Issues and Decision Memorandum at Comment 4. The Department did not collapse Vinh Hoan Feed 1 Company (‘‘Vinh Hoan Feed’’) with these other companies, however, because Vinh Hoan Feed lacked a critical capital component (freezing machines) in order to produce comparable merchandise. Id. Based on evidence submitted by Vinh Hoan in this administrative review, the Department finds that Vinh Hoan is affiliated with Vinh Hoan Feed, Vinh Hoan USA, Van Duc, and another entity, Van Duc Tien Giang (‘‘VD TG’’) pursuant to section 771 (33) of the Act. See Vinh Hoan’s March 2, 2010, submission at 2– 8. Furthermore, based on evidence on the record, the Department preliminarily finds that Vinh Hoan, Van Duc, and VD TG should be treated as a single entity for purposes of this administrative review. See 19 CFR 351.401(f)(1) and (2). All three companies have the ability to produce and/or export subject merchandise. Furthermore, the companies are under the common control of Ms. Truong and her family by virtue of ownership, common board members or managers. As such, there is significant potential for VerDate Mar<15>2010 18:57 Sep 14, 2010 Jkt 220001 manipulation of price or production. The Department still determines, however, that Vinh Hoan Feed lacks the critical capital component (freezing machines) in order to produce comparable merchandise. Therefore, pursuant to 19 CFR 351.401(f)(1) and (2), the Department preliminary finds that Vinh Hoan, Van Duc, and VD TG but not Vinh Hoan Feed, should be treated as a single entity (collectively, the ‘‘Vinh Hoan Group’’) in these preliminary results. Vinh Quang With regard to Vinh Quang, the Department preliminarily finds that Vinh Quang is affiliated with the following customers that resold the subject merchandise in the United States: (1) H&N Foods International (‘‘H&N’’); (2) Blue River Seafood Inc. (‘‘Blue River’’) (dba Joe Pucci & Sons (‘‘Pucci’’)); (3) Expack Seafoods, Inc. (‘‘Expack’’); and, (4) Clemente Seafood Center, Inc. (‘‘Clemente’’) (collectively ‘‘CEP Entities’’). The Department also finds Vinh Quang to be affiliated with H&N, Blue River/Pucci and Clemente under Section 771(33)(A) of the Act because members of the Lam Family 18 own directly or indirectly (with their husbands) the majority of these entities and are in a position to control them. See Vinh Quang July 13, 2010, submission at 2–9. Finally, the Department determines that Expack is affiliated with H&N (and indirectly to Vinh Quang) under 771(33)(E) and (F) of the Act because H&N is the majority owner of Expack and because the Lam Family members (one of the Lam sisters, her husband and children) are in a position to directly or indirectly control Expack. Id. Therefore, for these preliminary results the Department will use the constructed export price (‘‘CEP’’) price paid to H&N, Blue River/Pucci, and Expack by their first unaffiliated U.S. customers of subject merchandise during the POR. For Clemente, please see Facts Available section below. Fair Value Comparisons To determine whether sales of the subject merchandise made by Vinh Hoan, Vinh Quang or CL-Fish to the United States were at prices below NV, we compared each company’s export price (‘‘EP’’) or CEP, where appropriate, to NV, as described below. U.S. Price For Vinh Hoan’s and CL-Fish’s EP sales, we used the EP methodology, 18 These individuals include Quang Lam and his three blood sisters and their children. PO 00000 Frm 00018 Fmt 4703 Sfmt 4703 pursuant to section 772(a) of the Act, because the first sale to an unaffiliated purchaser was made prior to importation and CEP was not otherwise warranted by the facts on the record. We calculated EP based on the free-onboard foreign port price to the first unaffiliated purchaser in the United States. For the EP sales, we also deducted foreign inland freight, foreign cold storage, foreign brokerage and handling, foreign containerization, and international ocean freight from the starting price (or gross unit price), in accordance with section 772(c) of the Act. In accordance with section 772(b) of the Act, we used the CEP methodology when the first sale to an unaffiliated purchaser occurred after importation of the merchandise into the United States. In this instance, we calculated CEP for Vinh Hoan’s and Vinh Quang’s U.S. sales through its respective U.S. affiliates, Vinh Hoan USA and the Vinh Quang’s CEP Entities, respectively, to unaffiliated customers. For Vinh Hoan’s and Vinh Quang’s CEP sales, we made adjustments to the gross unit price, where applicable, for billing adjustments, rebates, foreign inland freight, international freight, foreign cold storage, foreign containerization, foreign brokerage and handling, U.S. marine insurance, U.S. inland freight, U.S. warehousing, U.S. inland insurance, other U.S. transportation expenses, and U.S. customs duties. In accordance with section 772(d)(1) of the Act, we also deducted those selling expenses associated with economic activities occurring in the United States, including commissions, credit expenses, advertising expenses, indirect selling expenses, inventory carrying costs, and U.S. re-packing costs. We also made an adjustment for profit in accordance with section 772(d)(3) of the Act. Where movement expenses were provided by NME-service providers or paid for in NME currency, we valued these services using surrogate values from Descartes Carrier Rate Retrieval Database (‘‘Descartes’’) Web site. See Surrogate Value Memo. Where applicable, we used the actual reported expense for those movement expenses provided by ME suppliers and paid for in ME currency. New Shipper Review Bona Fide Analysis Consistent with the Department’s practice, we investigated the bona fide nature of the sales made by CL-Fish in the new shipper review. We found that the new shipper sales by CL-Fish were E:\FR\FM\15SEN1.SGM 15SEN1 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Notices srobinson on DSKHWCL6B1PROD with NOTICES made on a bona fide basis.19 Based on our investigation into the bona fide nature of the sales, the questionnaire responses submitted by CL-Fish, as well as the company’s eligibility for separate rates (see Separate Rates Determination section above), we preliminarily determine that CL-Fish 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 CLFish’s sales of subject merchandise to the United States as appropriate transactions for this new shipper review. Normal Value Section 773(c)(1) of the Act provides that, in the case of an NME, the Department shall determine NV using an FOP methodology if the merchandise is exported from an NME and the information does not permit the calculation of NV using home-market prices, third-country prices, or constructed value under section 773(a) of the Act. Because information on the record does not permit the calculation of NV using home-market prices, thirdcountry prices, or constructed value and no party has argued otherwise, we calculated NV based on FOPs reported by Vinh Hoan, Vinh Quang, and CLFish, pursuant to sections 773(c)(3) and (4) of the Act and 19 CFR 351.408(c). As the basis for NV, Vinh Hoan, Vinh Quang, and CL-Fish provided FOPs used in each of the stages for processing frozen fish fillets. The Department’s general policy, consistent with section 773(c)(1)(B) of the Act, is to value the FOPs that a respondent uses to produce the subject merchandise. To calculate NV, the Department valued Vinh Hoan’s, Vinh Quang’s, and CL-Fish’s reported per-unit factor quantities using publicly available Philippine, Bangladeshi, Indian, and Indonesian surrogate values. The Philippines was our first surrogate country source from which to obtain data to value inputs, and when data were not available from there, we used Bangladeshi, Indian, or Indonesian sources. In selecting surrogate values, we considered the quality, specificity, and contemporaneity of the available values. As appropriate, we adjusted the value of material inputs to account for delivery costs. Specifically, we added surrogate freight costs to surrogate 19 See Memorandum from Javier Barrientos, Case Analyst, Office 9, through Alex Villanueva, Program Manager, Office 9: Bona Fide Nature of the Sales in the Antidumping Duty New Shipper Review of Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Cuu Long Fish Joint Stock Company, dated September 7, 2010. VerDate Mar<15>2010 18:57 Sep 14, 2010 Jkt 220001 values using the reported distances from the Vietnam port to the Vietnam factory or from the domestic supplier to the factory, where appropriate. This adjustment is in accordance with the decision of the CAFC in Sigma Corp. v. United States, 117 F.3d 1401, 1407– 1408 (Fed. Cir. 1997). For those values not contemporaneous with the POR, we adjusted for inflation using data published in the International Monetary Fund’s International Financial Statistics. In accordance with the OTCA 1988 legislative history, the Department continues to apply its long-standing practice of disregarding surrogate values if it has a reason to believe or suspect the source data may be subsidized.20 In this regard, the Department has previously found that it is appropriate to disregard such prices from India, Indonesia, South Korea and Thailand because we have determined that these countries maintain broadly available, non-industry specific export subsidies.21 Based on the existence of these subsidy programs that were generally available to all exporters and producers in these countries at the time of the POR, the Department finds that it is reasonable to infer that all exporters from India, Indonesia, South Korea and Thailand may have benefitted from these subsidies. Additionally, we disregarded prices from NME countries. Finally, imports that were labeled as originating from an ‘‘unspecified’’ country were excluded from the average value, because the Department could not be certain that they were not from either an NME country or a country with general export subsidies. For further detail, see Surrogate Values Memo. As a consequence of the CAFC’s ruling in Dorbest II,22 the Department is 20 See Omnibus Trade and Competitiveness Act of 1988, Conf. Report to Accompany H.R. 3, H.R. Rep. No. 576, 100th Cong., 2nd Sess. (1988) (‘‘OTCA 1988’’) at 590. 21 See, e.g., Expedited Sunset Review of the Countervailing Duty Order on Carbazole Violet Pigment 23 from India, 75 FR 13257 (March 19, 2010) and accompanying Issues and Decision Memorandum at pages 4–5; Expedited Sunset Review of the Countervailing Duty Order on Certain Cut-to-Length Carbon Quality Steel Plate from Indonesia, 70 FR 45692 (August 8, 2005) and accompanying Issues and Decision Memorandum at page 4; See Corrosion-Resistant Carbon Steel Flat Products from the Republic of Korea: Final Results of Countervailing Duty Administrative Review, 74 FR 2512 (January 15, 2009) and accompanying Issues and Decision Memorandum at pages 17, 19– 20; See Certain Hot-Rolled Carbon Steel Flat Products from Thailand: Final Results of Countervailing Duty Determination, 66 FR 50410 (October 3, 2001) and accompanying Issues and Decision Memorandum at page 23. 22 See Dorbest Ltd. v. United States, 604 F.3d 1363 (CAFC 2010). PO 00000 Frm 00019 Fmt 4703 Sfmt 4703 56069 no longer relying on the regressionbased wage rate described in 19 CFR 351.408(c)(3). The Department is continuing to evaluate options for determining labor values in light of the recent CAFC decision. For these preliminary results, we have calculated an hourly wage rate to use in valuing the reported labor input by averaging earnings and/or wages in countries that are economically comparable to Vietnam and that are significant producers of comparable merchandise. For further information on the calculation of the wage rate, please see the Surrogate Value Memo. Currency Conversion Where necessary, the Department made currency conversions into U.S. dollars, in accordance with section 773A(a) of the Act, based on the exchange rates in effect on the dates of the U.S. sales, as certified by the Federal Reserve Bank. Preliminary Results of the Review As a result of our review, we preliminarily find that the following margins exist for the period August 1, 2008, through July 31, 2009. CERTAIN FROZEN FISH FILLETS FROM VIETNAM Manufacturer/Exporter (1) Vinh Hoan 23 ............... (2) Vinh Quang ................. (3) Agifish ......................... (4) ESS LLC ..................... (5) South Vina .................. Vietnam-Wide Rate 24 ....... Weighted-average margin (Dollars per kilogram) 4.22 2.44 4.22 4.22 4.22 2.11 As a result of the new-shipper review, the Department preliminarily determines that a weighted-average dumping margin of $0.93 per kilogram exists for merchandise produced and exported by CL-Fish for the period August 1, 2008, through July 31, 2009. With respect to Anvifish JSC, although there is now evidence on the record of this review that Anvifish Co., Ltd. underwent a name change to become Anvifish JSC during the fourth administrative review,25 there is still insufficient information to determine if Anvifish JSC is in fact the successor in interest to Anvifish Co., Ltd. Therefore, the Department will issue a postpreliminary supplemental questionnaire 23 This rate is applicable to the Vinh Hoan Group which includes Vinh Hoan, Van Duc, and VD TG. 24 This rate is applicable to Anvifish JSC. 25 See Anvifish JSC’s submission, dated July 16, 2010. E:\FR\FM\15SEN1.SGM 15SEN1 56070 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Notices to determine if Anvifish JSC is the successor to Anvifish Co., Ltd. and if Anvifish JSC is entitled to use the rate assigned to Anvifish Co., Ltd. Until the Department determines otherwise, Anvifish JSC will remain part of the Vietnam-wide entity. srobinson on DSKHWCL6B1PROD with NOTICES Public Comment The Department will disclose to parties of this proceeding the calculations performed in reaching the preliminary results within five days of the date of announcement of the preliminary results. See 19 CFR 351.224(b). An interested party may request a hearing within 30 days of publication of the preliminary results. See 19 CFR 351.310(c). Interested parties may submit written comments (case briefs) within 30 days of publication of the preliminary results and rebuttal comments (rebuttal briefs), which must be limited to issues raised in the case briefs, within five days after the time limit for filing case briefs. See 19 CFR 351.309(c)(1)(ii) and 19 CFR 351.309(d). Parties who submit arguments are requested to submit with the argument: (1) A statement of the issue; (2) a brief summary of the argument; and (3) a table of authorities. Further, the Department requests that parties submitting written comments provide the Department with a diskette containing the public version of those comments. Unless the deadline is extended pursuant to section 751(a)(3)(A) of the Act, the Department will issue the final results of this administrative review, including the results of our analysis of the issues raised by the parties in their comments, within 120 days of publication of the preliminary results. The assessment of antidumping duties on entries of merchandise covered by this review and future deposits of estimated duties shall be based on the final results of this review. Assessment Rates Upon completion of this administrative review, pursuant to 19 CFR 351.212(b), the Department will calculate an assessment rate on all appropriate entries. For the mandatory respondents, Vinh Hoan and Vinh Quang, and new shipper, CL-Fish, we will calculate importer-specific duty assessment rates on a per-unit basis.26 26 We divided the total dumping margins (calculated as the difference between NV and EP or CEP) for each importer by the total quantity of subject merchandise sold to that importer during the POR to calculate a per-unit assessment amount. We will direct CBP to assess importer-specific assessment rates based on the resulting per-unit (i.e., per-kilogram) rates by the weight in kilograms VerDate Mar<15>2010 18:57 Sep 14, 2010 Jkt 220001 Where the assessment rate is de minimis, we will instruct CBP to assess no duties on all entries of subject merchandise by that importer. We will instruct CBP to liquidate entries containing merchandise from the Vietnam-wide entity at the Vietnamwide rate we determine in the final results of review. We intend to issue assessment instructions to CBP 15 days after the date of publication of the final results of review. Cash Deposit Requirements The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Act: (1) For the exporters listed above, except for CLFish (see below), the cash deposit rate will be that established in the final results of this review (except, if the rate is zero or de minimis, the cash deposit will be zero); (2) for previously investigated or reviewed Vietnam and non-Vietnam exporters not listed above that have separate rates, the cash deposit rate will continue to be the exporter-specific rate published for the most recent period; (3) for all Vietnam exporters of subject merchandise which have not been found to be entitled to a separate rate, the cash deposit rate will be the Vietnam-wide rate of $2.11 per kilogram; and (4) for all non-Vietnam exporters of subject merchandise which have not received their own rate, the cash deposit rate will be the rate applicable to the Vietnam exporters that supplied that non-Vietnam exporter. These deposit requirements, when imposed, shall remain in effect until further notice. The following cash deposit requirements will be effective upon publication of the final results of this review for all shipments of subject merchandise from new shipper CL-Fish 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 CL-Fish, the cash deposit rate will be the rate established in the final results; (2) for subject merchandise exported by CL-Fish but not manufactured by CL-Fish, the cash deposit rate will continue to be the Vietnam-wide rate (i.e., $2.11 per kilogram); and (3) for subject of each entry of the subject merchandise during the POR. PO 00000 Frm 00020 Fmt 4703 Sfmt 4703 merchandise manufactured by CL-Fish, 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 where CL-Fish is the exporter and manufacturer. These cash deposit requirements, when imposed, shall remain in effect until further notice. Notification to Interested Parties This notice serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in the Secretary’s presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties. We are issuing and publishing this determination in accordance with sections 751(a)(1) and 777(i)(1) of the Act. Dated: September 7, 2010. Ronald K. Lorentzen, Deputy Assistant Secretary for Import Administration. [FR Doc. 2010–23001 Filed 9–14–10; 8:45 am] BILLING CODE 3510–DS–P DEPARTMENT OF COMMERCE International Trade Administration [A–570–909] Certain Steel Nails From the People’s Republic of China: Notice of Preliminary Results and Preliminary Rescission, in Part, of the Antidumping Duty Administrative Review Import Administration, International Trade Administration, Department of Commerce. SUMMARY: The Department of Commerce (‘‘Department’’) is conducting the first administrative review of the antidumping duty order on certain steel nails (‘‘nails’’) from the People’s Republic of China (‘‘PRC’’) for the period of review (‘‘POR’’) January 23, 2008, through July 31, 2009. The Department has preliminarily determined that sales have been made below normal value (‘‘NV’’) with respect to certain exporters who participated fully and are entitled to a separate rate in this administrative review. If these preliminary results are adopted in our final results of this review, the Department will instruct U.S. Customs and Border Protection AGENCY: E:\FR\FM\15SEN1.SGM 15SEN1

Agencies

[Federal Register Volume 75, Number 178 (Wednesday, September 15, 2010)]
[Notices]
[Pages 56062-56070]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-23001]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-552-801]


Certain Frozen Fish Fillets From the Socialist Republic of 
Vietnam: Notice of Preliminary Results and Partial Rescission of the 
Sixth Antidumping Duty Administrative Review and Sixth New Shipper 
Review

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

SUMMARY: The Department of Commerce (``Department'') is conducting an 
administrative review and new shipper review of the antidumping duty 
order on certain frozen fish fillets from the Socialist Republic of 
Vietnam (``Vietnam''). See Notice of Antidumping Duty Order: Certain 
Frozen Fish Fillets From the Socialist Republic of Vietnam, 68 FR 47909 
(August 12, 2003) (``Order''). The Department has preliminarily 
determined that Vinh Hoan Corporation (``Vinh Hoan''),\1\ Vinh Quang 
Fisheries Corporation (``Vinh Quang'') and CUU Long Fish Joint Stock 
Company (``CL-Fish'') sold subject merchandise at less than normal 
value (``NV'') during the period of review (``POR''), August 1, 2008, 
through July 31, 2009.
---------------------------------------------------------------------------

    \1\ The Department is treating Vinh Hoan, Van Duc Food Export 
Joint Company (``Van Duc'') and Van Duc Tien Giang (``VD TG'') as a 
single entity. Section 351.401(f) of the Department's regulations 
define single entities as those affiliated producers who have 
production facilities for similar or identical products that would 
not require substantial retooling of either facility in order to 
restructure manufacturing priorities and the Secretary concludes 
that there is a significant potential for the manipulation of price 
or production. For further analysis, see Affiliations and Collapsing 
section below.

---------------------------------------------------------------------------
DATES: Effective Date: September 15, 2010.

FOR FURTHER INFORMATION CONTACT: Emeka Chukwudebe or Javier Barrientos, 
AD/CVD Operations, Office 9, Import Administration, International Trade 
Administration, U.S. Department of Commerce, 14th Street and

[[Page 56063]]

Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-
0219 or (202) 482-2243, respectively.

SUPPLEMENTARY INFORMATION:

Case History

    On July 31, 2009, pursuant to section 19 CFR 351.214(c), the 
Department received a new shipper review request from CL-Fish. On 
August 3, 2009, the Department published a notice of an opportunity to 
request an administrative review of the Order. See Antidumping or 
Countervailing Duty Order, Finding, or Suspended Investigation; 
Opportunity To Request Administrative Review, 74 FR 38397 (August 3, 
2009). By August 31, 2009, the Department received review requests for 
22 companies from Petitioners \2\ and certain individual companies.
---------------------------------------------------------------------------

    \2\ 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, and 
Simmons Farm Raised Catfish, Inc.
---------------------------------------------------------------------------

    On September 22, 2009, the Department initiated an antidumping duty 
administrative review on frozen fish fillets from Vietnam covering the 
period, August 1, 2008, through July 31, 2009. See Initiation of 
Antidumping and Countervailing Duty Administrative Reviews and Request 
for Revocation in Part, 74 FR 48224 (September 22, 2009) (``Initiation 
Notice''). The Department initiated this review with respect to 22 
companies.\3\
---------------------------------------------------------------------------

    \3\ These companies include: (1) An Giang Fisheries Import and 
Export Joint Stock Company (aka Agifish or; AnGiang Fisheries Import 
and Export); (2) Anvifish Co., Ltd.; (3) Anvifish Joint Stock 
Company (``Anvifish JSC''); (4) Asia Commerce Fisheries Joint Stock 
Company (aka Acomfish JSC) (``Acomfish''); (5) Binh An Seafood Joint 
Stock Co. (``Binh An''); (6) Cadovimex II Seafood Import-Export and 
Processing Joint Stock Company; (aka Cadovimex II) (``Cadovimex 
II''); (7) CL-Fish; (8) East Sea Seafoods Limited Liability Company 
(formerly known as East Sea Seafoods Joint Venture Co., Ltd.) (``ESS 
LLC''); (9) East Sea Seafoods Joint Venture Co., Ltd. (``ESS JVC''); 
(10) Hiep Thanh Seafood Joint Stock Co. (``Hiep Thanh''); (11) Nam 
Viet Company Limited (aka NAVICO) (``NAVICO''); (12) NTSF Seafoods 
Joint Stock Company (aka NTSF) (``NTSF''); (13) Panga Mekong Co., 
Ltd. (``Panga Mekong''); (14) QVD Food Company, Ltd. (``QVD''); (15) 
QVD Dong Thap Food Co., Ltd. (``QVD DT''); (16) Saigon-Mekong 
Fishery Co., Ltd. (aka SAMEFICO) (``SAMEFICO''); (17) Southern 
Fishery Industries Company, Ltd. (aka South Vina); (18) Thien Ma 
Seafood Co., Ltd. (``Thien Ma''); (19) Thuan Hung Co., Ltd. (aka 
THUFICO) (``Thuan Hung''); (20) Vinh Hoan Corporation; (21) Vinh 
Hoan Company, Ltd.; and (22) Vinh Quang.
---------------------------------------------------------------------------

    On September 25, 2009, the Department initiated the sixth 
antidumping duty new shipper review covering the same period as the 
administrative review. For this POR, the company to be reviewed is CL-
Fish. See Certain Frozen Fish Fillets from the Socialist Republic of 
Vietnam: Initiation of New Shipper Review, 74 FR 48908, (September 25, 
2009).
    On November 10, 2009, the Department issued a letter to all 
interested parties informing them of its decision to select as 
mandatory respondents QVD and Vinh Hoan, the two largest exporters of 
subject merchandise during the POR, based on U.S. Customs and Borders 
Protection (``CBP'') import data. See Memorandum to the File from 
Javier Barrientos, Senior Analyst, through Alex Villanueva, Program 
Manager, Antidumping Duty Administrative Review of Certain Frozen Fish 
Fillets from the Socialist Republic of Vietnam (``Vietnam''): Selection 
of Respondents for Individual Review (``First Respondent Selection 
Memo''), dated November 10, 2009. On January 7, 2010, QVD withdrew its 
request for an administrative review. On January 8, 2010, Anvifish JSC 
withdrew its request for an administrative review. On January 8, 2010, 
Petitioners partially withdrew their August 31, 2009, request for an 
administrative review for 13 companies including QVD.\4\ On January 29, 
2010, the Department determined to individually examine the voluntary 
respondent, Vinh Quang. See Memorandum to the File from Emeka 
Chukwudebe, Case Analyst, through Alex Villanueva, Program Manager, 
Antidumping Duty Administrative Review of Certain Frozen Fish Fillets 
from the Socialist Republic of Vietnam (``Vietnam''): Replacement of 
Mandatory Respondent (``Second Respondent Selection Memo''), dated 
January 29, 2010.
---------------------------------------------------------------------------

    \4\ These companies include: (1) Cadovimex II; (2) CL-Fish; (3) 
Hiep Thanh; (4) NAVICO; (5) NTSF; (6) Panga Mekong; (7) QVD; (8) 
SAMEFICO; (9) Thien Ma; (10) Thuan Hung; (11) Vinh Quang; (12) QVD 
DT, and; (13) Anvifish Co., Ltd. However, the Department continued 
the administrative review with respect to Vinh Quang as this company 
was chosen as a voluntary respondent. See Second Respondent 
Selection Memo.
---------------------------------------------------------------------------

    Between October 13, 2009, and August 12, 2010, new shipper, CL-
Fish, submitted responses to the original sections A, C, and D 
questionnaire and supplemental sections A, C, and D questionnaire. 
Between November 24, 2009, and August 12, 2010, Vinh Quang submitted 
responses to the original sections A, C, and D questionnaires and 
supplemental sections A, C, and D questionnaires. Between December 4, 
2009, and August 12, 2010, Vinh Hoan submitted responses to the 
original sections A, C, and D questionnaires and supplemental sections 
A, C, and D questionnaires.
    On January 29, 2010, the Department extended the deadline for 
parties to file surrogate country comments and surrogate value data. 
See Memorandum to the File, from Emeka Chukwudebe, Case Analyst, 
through Alex Villanueva, Program Manager, Administrative Review of 
Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: 
Extension Request for Surrogate Country Selection Comments and 
Surrogate Value Submissions, dated January 29, 2010. On February 12, 
2010, the Department tolled all administrative deadlines, including 
these reviews, by one calendar week. See Tolling of Administrative 
Deadlines As a Result of the Government Closure During the Recent 
Snowstorm, dated February 12, 2010, (``Tolling Memo''). On March 9, 
2010, the Department aligned the sixth new shipper review with the 
sixth administrative review. See Memorandum to the File, from Javier 
Barrientos, Senior Case Analyst, through Alex Villanueva, Program 
Manager, Alignment of 6th New Shipper Review of Certain Frozen Fish 
Fillets from the Socialist Republic of Vietnam with the 6th 
Administrative Review of Certain Frozen Fish Fillets from the Socialist 
Republic of Vietnam, dated March 9, 2010. Between April 2, 2010, and 
July 9, 2010, the Department received surrogate country and value 
comments and rebuttal comments from interested parties. On April 22, 
2010, the Department partially extended the deadline for the 
preliminary results in these reviews. See Certain Frozen Fish Fillets 
from the Socialist Republic of Vietnam: Extension of Time Limit for 
Preliminary Results of the 6th Antidumping Duty Administrative and 6th 
New Shipper Reviews, 75 FR 20983 (April 22, 2010).
    On May 27, 2010, the Department partially rescinded the 
administrative review with respect to 13 companies.\5\ See Certain 
Frozen Fish Fillets From the Socialist Republic of Vietnam: Notice of 
Partial Rescission of the Sixth Antidumping Duty Administrative Review, 
75 FR 29726 (May 27, 2010) (``Partial Rescission Notice''). Therefore, 
nine companies remain in this administrative review: (1) Agifish; (2) 
Acomfish; (3) Anvifish JSC; \6\ (4) Binh An; (5) East Sea Seafoods 
Limited Liability Company (formerly known as East Sea Seafoods Joint 
Venture Co.,

[[Page 56064]]

Ltd.); (6) Hiep Thanh; (7) South Vina; (8) Vinh Hoan; and (9) Vinh 
Quang.
---------------------------------------------------------------------------

    \5\ These companies include: (1) Cadovimex II; (2) CL-Fish; (3) 
Hiep Thanh; (4) NAVICO; (5) NTSF; (6) Panga Mekong; (7) QVD; (8) 
SAMEFICO; (9) Thien Ma; (10) Thuan Hung; (11) Vinh Quang; (12) QVD 
DT; and (13) Anvifish Co., Ltd.
    \6\ Although the Department noted on January 8, 2010, Anvifish 
JSC withdrew its request for an administrative review, in the 
Partial Rescission Notice, the Department stated there was no 
information on the record indicating Anvifish JSC was assigned a 
separate rate.
---------------------------------------------------------------------------

    On July 16, 2010, Anvifish JSC placed information on the record 
identifying its name change in the fourth administrative review from 
Anvifish Co., Ltd. to Anvifish JSC. On July 30, 2010, the Department 
published in the Federal Register a second notice fully extending the 
time period for issuing the preliminary results in these reviews. See 
Certain Frozen Fish Fillets From the Socialist Republic of Vietnam: 
Extension of Time Limit for Preliminary Results of the 6th Antidumping 
Duty Administrative and 6th New Shipper Reviews, 75 FR 44938 (July 30, 
2010). The preliminary results are currently due on September 7, 2010, 
(inclusive of the seven day extension per the Tolling Memo).

Vietnam-Wide Entity

    As discussed above, in this administrative review we limited the 
selection of respondents using CBP import data. See First Respondent 
Selection Memo at Attachment I. In this case, we made available to the 
companies who were not selected, the separate rates application and 
certification, which were put on the Department's Web site. See 
Initiation Notice. Those companies which did not apply for separate 
rates will continue to be part of the Vietnam-wide entity. Because some 
parties for which a review was requested did not apply for separate 
rate status, the Vietnam-wide entity is considered to be part of this 
review.

Preliminary Partial Rescission of Administrative Review

Acomfish and Binh An

    Pursuant to 19 CFR 351.213(d)(3), the Department has preliminarily 
determined that Acomfish and Binh An made no shipments of subject 
merchandise during the POR of this administrative review. On October, 
13, 2009, the Department received no-shipment certifications from 
Acomfish and Binh An. However, according to entry statistics obtained 
from CBP, and placed on the record, Binh An had an entry of subject 
merchandise during the POR. In the partial rescission of review notice, 
the Department stated that it would address this claim and any possible 
rescission in the preliminary results. See Partial Rescission Notice.
    On January 13, 2010, the Department issued no-shipment inquiries to 
CBP requesting any information for merchandise manufactured and shipped 
by either Acomfish or Binh An during the POR. The Department did not 
receive any response from CBP, thus indicating that there were no 
entries of subject merchandise into the United States exported by these 
companies. On May 26, 2010, the Department issued a request for the 
complete entry package document for the shipment made by Binh An during 
the POR. In addition, on July 9, 2010, the Department issued a 
supplemental questionnaire to Binh An requesting additional information 
regarding the subject merchandise entered during the POR. On July 15, 
2010, Binh An submitted a response stating that the shipment was for 
sampling purposes only. Furthermore, our analysis of the CBP entry 
package was consistent with Binh An's explanation. The Department 
therefore found no record evidence indicating that Binh An received 
financial consideration for this transaction. Id.
    Consequently, as Acomfish did not export subject merchandise during 
the POR, and Binh An's transaction was not considered a sale because it 
was a sample transaction for no financial consideration, we are 
preliminarily rescinding the review, in part, with respect to Acomfish 
and Binh An.

Separate Rates

Agifish, Anvifish Co., Ltd., Vinh Hoan, QVD, South Vina, and CL-Fish

    A designation as a non-market economy (``NME'') remains in effect 
until it is revoked by the Department. See section 771(18)(C) of the 
Tariff Act of 1930, as amended (``the Act''). Accordingly, there is a 
rebuttable presumption that all companies within Vietnam are subject to 
government control and, thus, should be assessed a single antidumping 
duty rate. It is the Department's standard policy to assign all 
exporters of the merchandise subject to review in NME countries a 
single rate unless an exporter can affirmatively demonstrate an absence 
of government control, both in law (de jure) and in fact (de facto), 
with respect to exports. To establish whether a company is sufficiently 
independent to be entitled to a separate, company-specific rate, the 
Department analyzes each exporting entity in an NME country under the 
test established in the Final Determination of Sales at Less than Fair 
Value: Sparklers from the People's Republic of China, 56 FR 20588 (May 
6, 1991) (``Sparklers''), as amplified by the Notice of Final 
Determination of Sales at Less Than Fair Value: Silicon Carbide from 
the People's Republic of China, 59 FR 22585 (May 2, 1994) (``Silicon 
Carbide'').
A. Absence of De Jure Control
    The Department considers the following de jure criteria in 
determining whether an individual company may be granted a separate 
rate: (1) An absence of restrictive stipulations associated with an 
individual exporter's business and export licenses; and (2) any 
legislative enactments decentralizing control of companies.
    Although the Department has previously assigned a separate rate to 
all of the companies eligible for a separate rate in the instant 
proceeding, it is the Department's policy to evaluate separate rates 
questionnaire responses each time a respondent makes a separate rates 
claim, regardless of whether the respondent received a separate rate in 
the past. See Manganese Metal from the People's Republic of China, 
Final Results and Partial Rescission of Antidumping Duty Administrative 
Review, 63 FR 12440 (March 13, 1998).
    In this review, Agifish, Anvifish Co., Ltd., Vinh Hoan, QVD, and 
South Vina submitted complete separate rate certifications and 
applications. CL-Fish provided separate rate information in its new 
shipper review questionnaire responses. The evidence submitted by these 
companies includes government laws and regulations on corporate 
ownership, business licenses, and narrative information regarding the 
companies' operations and selection of management. The evidence 
provided by these companies supports a finding of a de jure absence of 
government control over their export activities, based on: (1) An 
absence of restrictive stipulations associated with the exporter's 
business license; and (2) the legal authority on the record 
decentralizing control over the respondents.
B. Absence of De Facto Control
    The absence of de facto government control over exports is based on 
whether the respondent: (1) Sets its own export prices independent of 
the government and other exporters; (2) retains the proceeds from its 
export sales and makes independent decisions regarding the disposition 
of profits or financing of losses; (3) has the authority to negotiate 
and sign contracts and other agreements; and (4) has autonomy from the 
government regarding the selection of management. See Silicon Carbide, 
59 FR at 22587; Sparklers, 56 FR at 20589; see also Notice of Final 
Determination of Sales at Less Than Fair Value: Furfuryl Alcohol from 
the People's Republic of China, 60 FR 22544, 22545 (May 8, 1995).
    In this review, Agifish, Anvifish Co., Ltd., Vinh Hoan, QVD, South 
Vina, and CL-Fish submitted evidence indicating an absence of de facto 
government control over their export activities. Specifically, this 
evidence indicates

[[Page 56065]]

that: (1) Each company sets its own export prices independent of the 
government and without the approval of a government authority; (2) each 
company retains the proceeds from its sales and makes independent 
decisions regarding the disposition of profits or financing of losses; 
(3) each company has a general manager, branch manager or division 
manager with the authority to negotiate and bind the company in an 
agreement; (4) the general managers are selected by the board of 
directors or company employees, and the general managers appoint the 
deputy managers and the manager of each department; and (5) there is no 
restriction on any of the companies' use of export revenues. Therefore, 
the Department preliminarily finds that Agifish, Anvifish Co., Ltd., 
Vinh Hoan, QVD, and South Vina have established that they qualify for 
separate rates under the criteria established by Silicon Carbide and 
Sparklers.

ESS LLC and ESS JVC

    ESS LLC requested an administrative review of its entries and on 
November 24, 2009, submitted a separate rates questionnaire response. A 
review of CBP data indicated that ESS LLC had no entries during the POR 
under its own name; instead all of the entries came in under ESS 
JVC.\7\
---------------------------------------------------------------------------

    \7\ See First Respondent Selection Memo at attachment I.
---------------------------------------------------------------------------

    In the prior administrative review, ESS LLC claimed it was a 
successor-in-interest to ESS JVC. In that review, the Department found 
that ESS LLC was not the successor-in-interest to ESS JVC, and as such, 
was not entitled to ESS JVC's rate.\8\ This determination was upheld by 
the Court of International Trade.\9\ The Department also found that ESS 
JVC ceased to exist on July 31, 2008.
---------------------------------------------------------------------------

    \8\ See Certain Frozen Fish Fillets from the Socialist Republic 
of Vietnam: Final Results of the Antidumping Duty Administrative 
Review and New Shipper Reviews, 75 FR 12726 (March 17, 2010) (``5th 
AR and 4th NSR Final'').
    \9\ East Sea Seafoods LLC, v. United States and Catfish Farmers 
of America, Court No. 10-00102, Slip Op. 10-62 at 10 (CIT May 27, 
2010). ESS LLC has filed a notice of appeal in that case.
---------------------------------------------------------------------------

    In response to a supplemental questionnaire issued by the 
Department, ESS LLC explained that although its name does not appear on 
the CBP entry documents as the exporter, it is the entity that made 
those sales to the United Stated during the POR. Specifically, ESS LLC 
argues that the sales documents (e.g., invoices, payment, etc.) were 
issued on behalf of ESS LLC during the POR. See ESS LLC's July 14, 2010 
Submissions at 3, Exhibits 6-7. Therefore, record evidence supports a 
finding that the POR entries under ESS JVC's name were, in fact, ESS 
LLC sales and we will treat them accordingly.
    Based on the same analysis described above for the other companies 
and ESS LLC's separate rate response, we preliminarily find that ESS 
LLC is entitled to a separate rate in this review. Furthermore, we 
intend to refer the issue of ESS LLC's claim that the ESS JVC entries 
are in fact ESS LLC's entries during the POR to CBP for further 
consideration.

Use of Facts Available

Vinh Quang

    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.
    On July 13, 2010, in response to a supplemental questionnaire from 
the Department, Vinh Quang explained that it could not provide certain 
sales to the last unaffiliated U.S. customer because the affiliated 
U.S. customer stated that it did not have the records available to 
report the data for these U.S. sales. Although Vinh Quang attempted to 
collect the information on these sales, it notes that the volume of 
these sales was less than one percent of total U.S. sales during the 
POR through that affiliate.
    For these preliminary results, in accordance with sections 
776(a)(2)(B) of the Act, we have determined that the use of neutral 
facts available (``FA'') is warranted for Vinh Quang because, even 
though it did not report these very limited downstream sales from its 
affiliate, the affiliate provided an explanation of why it wasn't able 
to link these very limited sales to purchases by the unaffiliated U.S. 
customers (i.e., walk-in grocery store customers). See Vinh Quang's 
July 13, 2010, submission at 11-12. As partial neutral FA, we will use 
the weighted-average margin from the rest of the sales used to 
calculate the dumping margin as the margin for the sales observations 
in question. See Analysis of the Preliminary Results of the Antidumping 
Duty Administrative Review of Certain Frozen Fish Fillets from the 
Socialist Republic of Vietnam Vinh Quang Fisheries Corporation (``Vinh 
Quang'') dated September 7, 2010.

Rate for Non-Selected Companies

    In this review there are three companies that are not presently 
selected for individual examination, ESS LLC, South Vina, and Agifish. 
The statute and the Department's regulations do not address the 
establishment of a rate to be applied to individual companies not 
selected for examination where the Department limited its examination 
in an administrative review pursuant to section 777A(c)(2) of the Act. 
Generally, we have looked to section 735(c)(5) of the Act, which 
provides instructions for calculating the all-others rate in an 
investigation, for guidance when calculating the rate for respondents 
we did not examine in an administrative review. For the exporters 
subject to this review that were determined to be eligible for separate 
rate status, but were not selected as mandatory respondents, the 
Department generally weight-averages the rates calculated for the 
mandatory respondents, excluding any rates that are zero, de minimis, 
or based entirely on FA.\10\
---------------------------------------------------------------------------

    \10\ See, e.g., Wooden Bedroom Furniture From the People's 
Republic of China: Preliminary Results of Antidumping Duty 
Administrative Review, Preliminary Results of New Shipper Review and 
Partial Rescission of Administrative Review, 73 FR 8273, 8279 
(February 13, 2008) (unchanged in Wooden Bedroom Furniture from the 
People's Republic of China: Final Results of Antidumping Duty 
Administrative Review and New Shipper Review, 73 FR 49162 (August 
20, 2008)).
---------------------------------------------------------------------------

    For this administrative review, the Department has calculated 
positive margins for both the single mandatory respondent, Vinh Hoan, 
and the voluntary respondent, Vinh Quang. However, it is the 
Department's practice to only include the rates calculated for the 
mandatory respondents when calculating the separate rate for exporters 
determined to be eligible for separate rate status.\11\ Accordingly, 
consistent with our practice for these preliminary results, the 
Department has preliminarily established a margin for the separate rate 
respondents based on the rate calculated for the single mandatory 
respondent, Vinh Hoan. The rate established for the separate rate 
respondents is a per-unit rate of $4.22 dollars per kilogram. Entities 
receiving this rate are identified by name in the ``Preliminary Results 
of Review'' section of this notice.
---------------------------------------------------------------------------

    \11\ See Id.
---------------------------------------------------------------------------

Scope of the Order

    The product covered by this Order is frozen fish fillets, including 
regular, shank, and strip fillets and portions

[[Page 56066]]

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'').\12\ 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.
---------------------------------------------------------------------------

    \12\ Until July 1, 2004, these products were classifiable under 
tariff article codes 0304.20.60.30 (Frozen Catfish Fillets), 
0304.20.60.96 (Frozen Fish Fillets, NESOI), 0304.20.60.43 (Frozen 
Freshwater Fish Fillets) and 0304.20.60.57 (Frozen Sole Fillets) of 
the HTSUS. Until February 1, 2007, these products were classifiable 
under tariff article code 0304.20.60.33 (Frozen Fish Fillets of the 
species Pangasius including basa and tra) of the HTSUS.
---------------------------------------------------------------------------

Non-Market Economy Country Status

    In every case conducted by the Department involving Vietnam, 
Vietnam has been treated as a NME country. In accordance with section 
771(18)(C)(i) of the Act (``the Act''), any determination that a 
foreign country is an NME country shall remain in effect until revoked 
by the administering authority. See Notice of Final Results of 
Administrative Review: Certain Frozen Fish Fillets from the Socialist 
Republic of Vietnam, 73 FR 15479 (March 17, 2008) and accompanying 
Issues and Decision Memorandum (``3rd AR Final Results''). None of the 
parties to this proceeding have contested such treatment. Accordingly, 
we calculated NV in accordance with section 773(c) of the Act, which 
applies to NME countries.

Surrogate Country and Surrogate Values

    On December 18, 2009, the Department sent interested parties a 
letter setting a deadline to submit comments on surrogate country 
selection and information pertaining to valuing factors of production 
(``FOPs''). Between April, 8, 2010, and August 16, 2010, Vinh Hoan, CL-
Fish, the Vietnam Association of Seafood Exporters and Producers 
(``VASEP''), and/or Petitioners submitted surrogate country comments, 
surrogate value data and rebuttal comments.

Surrogate Country

    When the Department is investigating imports from an NME country, 
section 773(c)(1) of the Act directs it to base NV, in most 
circumstances, on the NME producer's FOPs, valued in a surrogate market 
economy country or countries considered to be appropriate by the 
Department. In accordance with section 773(c)(4) of the Act, in valuing 
the FOPs, the Department shall utilize, to the extent possible, the 
prices or costs of FOPs in one or more market economy countries that 
are: (1) At a level of economic development comparable to that of the 
NME country; and (2) significant producers of comparable merchandise.
    The Department determined that Bangladesh, Pakistan, India, Sri 
Lanka, the Philippines and Indonesia are countries comparable to 
Vietnam in terms of economic development.\13\
---------------------------------------------------------------------------

    \13\ 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 October 15, 2009.
---------------------------------------------------------------------------

    As we have stated in prior administrative review determinations, 
there is no world production data of Pangasius frozen fish fillets 
available on the record with which the Department can identify 
producers of identical merchandise. Therefore, absent world production 
data, the Department's practice is to compare, wherever possible, data 
for comparable merchandise and establish whether any economically 
comparable country was a significant producer.\14\ In this case, we 
have determined to use the broader category of frozen fish fillets data 
as the basis for identifying producers of comparable merchandise. 
Therefore, consistent with cases that have similar circumstances as are 
present here, we obtained export data for each country identified in 
the surrogate country list. Based on export data from U.N. Comtrade in 
2007,\15\ Bangladesh, the Philippines, Indonesia, India, Sri Lanka, and 
Pakistan are exporters of frozen fish fillets, and, thus, significant 
producers.
---------------------------------------------------------------------------

    \14\ See Certain Magnesia Carbon Bricks From the People's 
Republic of China: Preliminary Determination of Sales at Less Than 
Fair Value and Postponement of Final Determination, 75 FR 11847 
(March 12, 2010), unchanged for the final determination, 75 FR 45468 
(August 2, 2010).
    \15\ U.N. Comtrade data from 2006 and 2007 are the only years in 
which all countries have data for comparison. 2008 and 2009 data 
contains gaps preventing the Department from making appropriate 
comparisons. World Trade Atlas data shares a similar problem. See 
Surrogate Value Memo at Attachment I.
---------------------------------------------------------------------------

    After applying the first two selection criteria, if more than one 
country remains, it is the Department's practice to select an 
appropriate surrogate country based on the availability and reliability 
of data from those countries. See Department Policy Bulletin No. 04.1: 
Non-Market Economy Surrogate Country Selection Process (March 1, 2004) 
(``Surrogate Country Policy Bulletin''). In this case, the whole fish 
input is the most significant input because it accounts for the largest 
percentage of normal value (``NV'') as fish fillets are produced 
directly from the whole live fish. As such, we must consider the 
availability and reliability of the surrogate values for whole fish on 
the record. This record does not contain any data for whole live fish 
for Indonesia, India, Sri Lanka, and Pakistan. Therefore, these 
countries will not be considered for primary surrogate country purposes 
at this time. However, this record does contain whole fish surrogate 
value data from both Bangladesh and the Philippines.

Bangladesh

    In the most recently completed segment involving a new shipper 
review, the Department selected Bangladesh as the surrogate country due 
to the superior quality of the Bangladeshi data available in the 
Economics of Aquaculture Feeding Practices in Selected Asian Countries: 
FAO Technical Paper 505 (Rome, 2007) (``FAO Report''). See Certain 
Frozen Fish Fillets from the Socialist Republic of Vietnam, Final 
Results of Fifth New Shipper Review, 75 38985 (July 7, 2010) and 
accompanying Issues and Decision Memorandum at Comment 1 (``5th NSR 
Final''). In the 5th NSR Final, we found that the whole fish input data 
from the FAO Report were the best information available to value the 
fish input because they satisfied the surrogate value selection 
criteria (e.g., are publicly

[[Page 56067]]

available, represent a broad market average, are from an approved 
surrogate country, are specific to the input in question and are tax 
exclusive),\16\ even though they are not contemporaneous with the POR. 
The information on this record with respect to the FAO Report data 
remains unchanged from the prior new shipper review.
---------------------------------------------------------------------------

    \16\ See e.g., Fresh Garlic from the People's Republic of China: 
Final Results and Final Rescission, In Part, of New Shipper Reviews, 
74 FR 50952 (October 2, 2009), and accompanying Issues and Decision 
Memorandum at Comment 5; see also Third Administrative Review of 
Frozen Warmwater Shrimp From the People's Republic of China: Final 
Results and Partial Rescission of Antidumping Duty Administrative 
Review, 74 FR 46565 (September 10, 2009), and accompanying Issues 
and Decision Memorandum at Comment 3.
---------------------------------------------------------------------------

The Philippines

    In the fifth administrative review and fourth new shipper reviews, 
the Department was concerned with the public availability of the whole 
fish surrogate data from the Philippines. See 5th AR Final at Comment 
1. Subsequent to that segment, the Department again evaluated the 
public availability of the Philippines data and found that although 
Petitioners supplemented the record with additional information and 
documentation, serious concerns remained (e.g., not an official 
government publication in and of itself, an affidavit not made on 
behalf of the Philippines government, no discussion of public 
dissemination, etc.).\17\ On the record of this review however, 
Petitioners submitted information clearly generated by a Philippine 
government agency, on official Philippines government letterhead, and 
with an explanation of the data collection methods. In addition, they 
provided a complete copy of the Fisheries Statistics of the 
Philippines, 2006-2008, published by the Bureau of Agricultural 
Statistics, Department of Agriculture, (``Fisheries Statistics'') 
published in November 2009, which links the Philippines data provided 
in this and prior segments to an official Philippines government 
publication. Therefore, the Department no longer has concerns with the 
public availability of the Philippines data in this segment.
---------------------------------------------------------------------------

    \17\ In the most recently completed segment, we stated that ``In 
analyzing the Fish Pond Report, the Department has serious concerns 
about the public availability of the data. By Petitioners' own 
admission, the data are not published as the Fish Pond Report per 
se, but rather, the Fish Pond Report represents source data to be 
used in a yet-to-be-determined manner for official publication in 
the Fisheries Situationer. Therefore, the Fish Pond Report is not an 
official government publication in and of itself, nor is it even an 
interim government publication. Accordingly, we do not find the Fish 
Pond Report to be public information. Moreover, we find our concerns 
in this regard amplified by the observation that the affidavit is 
not made on behalf of the Philippine government, further 
underscoring our concerns about the public availability of this 
information.* * *
    Furthermore, the document has a hand written title and appears 
to be incomplete in some of the data fields as discussed below. 
There is no mention in the affidavit that the data is regularly 
disseminated in the Fish Pond Report format or whether the affiant 
is responsible for providing this data to the public. There is no 
explanation as to whether the affiant provides this data as a 
regular part of her government job, reducing the likelihood the data 
as released were subject to the ordinary review and analysis 
accompanying their inclusion in the Fisheries Situationer. Given 
these concerns, the Department does not find that this data is 
publicly available.'' See 5th NSR Final at Comment 1.
---------------------------------------------------------------------------

Analysis

    First, we note that both the FAO Report data and the Fisheries 
Statistics data are publicly available, tax- and duty-exclusive, and 
from an approved surrogate country. Therefore, we examined each source 
with respect to the broad market average, specificity, and 
contemporaneity. With respect to the broad market average, we find that 
the data from both the FAO Report and the Fisheries Statistics are 
considered broad market averages. As we have stated in prior reviews, 
the FAO Report data were obtained directly from 60 fish farmers from a 
region that produces fish in Bangladesh. However, the FAO Report does 
state why this particular region was selected (i.e., importance of this 
region in Pangas farming, the availability of hatchery produced fry, 
availability of ponds, warm climate, cheap and abundant labor). See FAO 
Report at 38. Similarly, the Philippines data were collected from 34 
respondents (i.e., ``farmers, operators, or caretakers. Other possible 
respondents are aqua farm traders and persons knowledgeable of 
aquaculture production in the locality.'') See Petitioners' July 9, 
2010 Submission at Attachment 1, page 2. Although we recognize that the 
Philippines data volume is only 12 metric tons, while the Bangladeshi 
data is 178 metric tons, for these preliminary results, we find that 
both of these sources are significant broad market averages because 
they represent national level data of similar quality using similar 
collection methods (i.e., interviews, questionnaires, etc.).
    With respect to specificity, the Bangladeshi data in the FAO Report 
specifically identify the whole live fish examined as Pangasianodon 
Hypopthalmus, which is one of the fish fillets species identified in 
the scope of the Order. The Philippines data in the Fisheries 
Statistics are identified as Pangasius, which is the genus name for the 
fish fillets subject to the Order. First, we note that Pangasius is a 
genus name and Pangasianodon Hypopthalmus is a species in that genus. 
In prior reviews, we used whole fish surrogate value data identified as 
Pangas and found it comparable to the fish input used by Respondents. 
See 3rd AR Final Results at Comment 4. In this case, although the whole 
fish data from Bangladesh are more specific to the input used by the 
Respondents in producing fish fillets, we note that the record does not 
contain any information that would lead us to preliminarily determine 
that any difference between the two sources would necessarily generate 
a difference in price. Moreover, Pangasianodon Hypopthalmus is 
considered a component of Pangasius so it is reasonable to find that 
the Pangasius price from the Philippines in the Fisheries Statistics is 
likely to include Pangasianodon Hypopthalmus and other comparable 
species names also listed in the Order.
    Finally, with respect to contemporaneity, we find that the 
Philippine data are contemporaneous with the POR as they are based on 
data collected in calendar year 2008. See Petitioners' July 9, 2010 
Submission at Attachment 1, page 3. The Bangladeshi data in the FAO 
Report are from calendar year 2005. Therefore, the Philippines data are 
contemporaneous with the POR, while the Bangladeshi data are not.
    After examining all the factors considered in selecting the 
surrogate value for fish as part of our surrogate country analysis, we 
find that the data available from the Philippines for the whole live 
fish represent the best surrogate values for these preliminary results. 
Given that Philippines data are contemporaneous, as equally a broad 
market average as the Bangladeshi data and of a similar genus of the 
fish used by the Respondents to produce fish fillets, we preliminarily 
select the Philippines as the most appropriate surrogate country. 
However, we hereby invite parties to submit additional comments and 
data from Bangladesh and the Philippines with respect to fish farming 
and fisheries that can be considered for the final results.

Affiliations and Collapsing

    Section 771 (33) of the Act provides that:

    The following persons shall be considered to be `affiliated' or 
`affiliated persons':
    (A) Members of a family, including brothers and sisters (whether 
by the whole or half blood), spouse, ancestors, and lineal 
descendants;
    (B) Any officer of director of an organization and such 
organization;
    (C) Partners;
    (D) Employer and employee;

[[Page 56068]]

    (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.''
    Finally, according to 19 CFR 351.401(f)(1) and (2), two or more 
companies may be treated as a single entity for antidumping duty 
purposes if: (1) The producers are affiliated, (2) the producers have 
production facilities for similar or identical products that would not 
require substantial retooling of either facility in order to 
restructure manufacturing priorities, and (3) there is a significant 
potential for manipulation of price or production. See 19 CFR 
351.401(f)(1) and (2).

Vinh Hoan

    In the final results of the fifth antidumping duty administrative 
review, the Department determined that Vinh Hoan and Van Duc Food 
Export Joint Company (``Van Duc'') should be treated as a single 
entity. See 5th AR Final, and accompanying Issues and Decision 
Memorandum at Comment 4. The Department did not collapse Vinh Hoan Feed 
1 Company (``Vinh Hoan Feed'') with these other companies, however, 
because Vinh Hoan Feed lacked a critical capital component (freezing 
machines) in order to produce comparable merchandise. Id.
    Based on evidence submitted by Vinh Hoan in this administrative 
review, the Department finds that Vinh Hoan is affiliated with Vinh 
Hoan Feed, Vinh Hoan USA, Van Duc, and another entity, Van Duc Tien 
Giang (``VD TG'') pursuant to section 771 (33) of the Act. See Vinh 
Hoan's March 2, 2010, submission at 2-8. Furthermore, based on evidence 
on the record, the Department preliminarily finds that Vinh Hoan, Van 
Duc, and VD TG should be treated as a single entity for purposes of 
this administrative review. See 19 CFR 351.401(f)(1) and (2). All three 
companies have the ability to produce and/or export subject 
merchandise. Furthermore, the companies are under the common control of 
Ms. Truong and her family by virtue of ownership, common board members 
or managers. As such, there is significant potential for manipulation 
of price or production. The Department still determines, however, that 
Vinh Hoan Feed lacks the critical capital component (freezing machines) 
in order to produce comparable merchandise. Therefore, pursuant to 19 
CFR 351.401(f)(1) and (2), the Department preliminary finds that Vinh 
Hoan, Van Duc, and VD TG but not Vinh Hoan Feed, should be treated as a 
single entity (collectively, the ``Vinh Hoan Group'') in these 
preliminary results.

Vinh Quang

    With regard to Vinh Quang, the Department preliminarily finds that 
Vinh Quang is affiliated with the following customers that resold the 
subject merchandise in the United States: (1) H&N Foods International 
(``H&N''); (2) Blue River Seafood Inc. (``Blue River'') (dba Joe Pucci 
& Sons (``Pucci'')); (3) Expack Seafoods, Inc. (``Expack''); and, (4) 
Clemente Seafood Center, Inc. (``Clemente'') (collectively ``CEP 
Entities''). The Department also finds Vinh Quang to be affiliated with 
H&N, Blue River/Pucci and Clemente under Section 771(33)(A) of the Act 
because members of the Lam Family \18\ own directly or indirectly (with 
their husbands) the majority of these entities and are in a position to 
control them. See Vinh Quang July 13, 2010, submission at 2-9. Finally, 
the Department determines that Expack is affiliated with H&N (and 
indirectly to Vinh Quang) under 771(33)(E) and (F) of the Act because 
H&N is the majority owner of Expack and because the Lam Family members 
(one of the Lam sisters, her husband and children) are in a position to 
directly or indirectly control Expack. Id.
---------------------------------------------------------------------------

    \18\ These individuals include Quang Lam and his three blood 
sisters and their children.
---------------------------------------------------------------------------

    Therefore, for these preliminary results the Department will use 
the constructed export price (``CEP'') price paid to H&N, Blue River/
Pucci, and Expack by their first unaffiliated U.S. customers of subject 
merchandise during the POR. For Clemente, please see Facts Available 
section below.

Fair Value Comparisons

    To determine whether sales of the subject merchandise made by Vinh 
Hoan, Vinh Quang or CL-Fish to the United States were at prices below 
NV, we compared each company's export price (``EP'') or CEP, where 
appropriate, to NV, as described below.

U.S. Price

    For Vinh Hoan's and CL-Fish's EP sales, we used the EP methodology, 
pursuant to section 772(a) of the Act, because the first sale to an 
unaffiliated purchaser was made prior to importation and CEP was not 
otherwise warranted by the facts on the record. We calculated EP based 
on the free-on-board foreign port price to the first unaffiliated 
purchaser in the United States. For the EP sales, we also deducted 
foreign inland freight, foreign cold storage, foreign brokerage and 
handling, foreign containerization, and international ocean freight 
from the starting price (or gross unit price), in accordance with 
section 772(c) of the Act.
    In accordance with section 772(b) of the Act, we used the CEP 
methodology when the first sale to an unaffiliated purchaser occurred 
after importation of the merchandise into the United States. In this 
instance, we calculated CEP for Vinh Hoan's and Vinh Quang's U.S. sales 
through its respective U.S. affiliates, Vinh Hoan USA and the Vinh 
Quang's CEP Entities, respectively, to unaffiliated customers.
    For Vinh Hoan's and Vinh Quang's CEP sales, we made adjustments to 
the gross unit price, where applicable, for billing adjustments, 
rebates, foreign inland freight, international freight, foreign cold 
storage, foreign containerization, foreign brokerage and handling, U.S. 
marine insurance, U.S. inland freight, U.S. warehousing, U.S. inland 
insurance, other U.S. transportation expenses, and U.S. customs duties. 
In accordance with section 772(d)(1) of the Act, we also deducted those 
selling expenses associated with economic activities occurring in the 
United States, including commissions, credit expenses, advertising 
expenses, indirect selling expenses, inventory carrying costs, and U.S. 
re-packing costs. We also made an adjustment for profit in accordance 
with section 772(d)(3) of the Act.
    Where movement expenses were provided by NME-service providers or 
paid for in NME currency, we valued these services using surrogate 
values from Descartes Carrier Rate Retrieval Database (``Descartes'') 
Web site. See Surrogate Value Memo. Where applicable, we used the 
actual reported expense for those movement expenses provided by ME 
suppliers and paid for in ME currency.

New Shipper Review Bona Fide Analysis

    Consistent with the Department's practice, we investigated the bona 
fide nature of the sales made by CL-Fish in the new shipper review. We 
found that the new shipper sales by CL-Fish were

[[Page 56069]]

made on a bona fide basis.\19\ Based on our investigation into the bona 
fide nature of the sales, the questionnaire responses submitted by CL-
Fish, as well as the company's eligibility for separate rates (see 
Separate Rates Determination section above), we preliminarily determine 
that CL-Fish 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 CL-Fish's sales of subject 
merchandise to the United States as appropriate transactions for this 
new shipper review.
---------------------------------------------------------------------------

    \19\ See Memorandum from Javier Barrientos, Case Analyst, Office 
9, through Alex Villanueva, Program Manager, Office 9: Bona Fide 
Nature of the Sales in the Antidumping Duty New Shipper Review of 
Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: 
Cuu Long Fish Joint Stock Company, dated September 7, 2010.
---------------------------------------------------------------------------

Normal Value

    Section 773(c)(1) of the Act provides that, in the case of an NME, 
the Department shall determine NV using an FOP methodology if the 
merchandise is exported from an NME and the information does not permit 
the calculation of NV using home-market prices, third-country prices, 
or constructed value under section 773(a) of the Act. Because 
information on the record does not permit the calculation of NV using 
home-market prices, third-country prices, or constructed value and no 
party has argued otherwise, we calculated NV based on FOPs reported by 
Vinh Hoan, Vinh Quang, and CL-Fish, pursuant to sections 773(c)(3) and 
(4) of the Act and 19 CFR 351.408(c).
    As the basis for NV, Vinh Hoan, Vinh Quang, and CL-Fish provided 
FOPs used in each of the stages for processing frozen fish fillets. The 
Department's general policy, consistent with section 773(c)(1)(B) of 
the Act, is to value the FOPs that a respondent uses to produce the 
subject merchandise.
    To calculate NV, the Department valued Vinh Hoan's, Vinh Quang's, 
and CL-Fish's reported per-unit factor quantities using publicly 
available Philippine, Bangladeshi, Indian, and Indonesian surrogate 
values. The Philippines was our first surrogate country source from 
which to obtain data to value inputs, and when data were not available 
from there, we used Bangladeshi, Indian, or Indonesian sources. In 
selecting surrogate values, we considered the quality, specificity, and 
contemporaneity of the available values. As appropriate, we adjusted 
the value of material inputs to account for delivery costs. 
Specifically, we added surrogate freight costs to surrogate values 
using the reported distances from the Vietnam port to the Vietnam 
factory or from the domestic supplier to the factory, where 
appropriate. This adjustment is in accordance with the decision of the 
CAFC in Sigma Corp. v. United States, 117 F.3d 1401, 1407-1408 (Fed. 
Cir. 1997). For those values not contemporaneous with the POR, we 
adjusted for inflation using data published in the International 
Monetary Fund's International Financial Statistics.
    In accordance with the OTCA 1988 legislative history, the 
Department continues to apply its long-standing practice of 
disregarding surrogate values if it has a reason to believe or suspect 
the source data may be subsidized.\20\ In this regard, the Department 
has previously found that it is appropriate to disregard such prices 
from India, Indonesia, South Korea and Thailand because we have 
determined that these countries maintain broadly available, non-
industry specific export subsidies.\21\ Based on the existence of these 
subsidy programs that were generally available to all exporters and 
producers in these countries at the time of the POR, the Department 
finds that it is reasonable to infer that all exporters from India, 
Indonesia, South Korea and Thailand may have benefitted from these 
subsidies.
---------------------------------------------------------------------------

    \20\ See Omnibus Trade and Competitiveness Act of 1988, Conf. 
Report to Accompany H.R. 3, H.R. Rep. No. 576, 100th Cong., 2nd 
Sess. (1988) (``OTCA 1988'') at 590.
    \21\ See, e.g., Expedited Sunset Review of the Countervailing 
Duty Order on Carbazole Violet Pigment 23 from India, 75 FR 13257 
(March 19, 2010) and accompanying Issues and Decision Memorandum at 
pages 4-5; Expedited Sunset Review of the Countervailing Duty Order 
on Certain Cut-to-Length Carbon Quality Steel Plate from Indonesia, 
70 FR 45692 (August 8, 2005) and accompanying Issues and Decision 
Memorandum at page 4; See Corrosion-Resistant Carbon Steel Flat 
Products from the Republic of Korea: Final Results of Countervailing 
Duty Administrative Review, 74 FR 2512 (January 15, 2009) and 
accompanying Issues and Decision Memorandum at pages 17, 19-20; See 
Certain Hot-Rolled Carbon Steel Flat Products from Thailand: Final 
Results of Countervailing Duty Determination, 66 FR 50410 (October 
3, 2001) and accompanying Issues and Decision Memorandum at page 23.
---------------------------------------------------------------------------

    Additionally, we disregarded prices from NME countries. Finally, 
imports that were labeled as originating from an ``unspecified'' 
country were excluded from the average value, because the Department 
could not be certain that they were not from either an NME country or a 
country with general export subsidies. For further detail, see 
Surrogate Values Memo.
    As a consequence of the CAFC's ruling in Dorbest II,\22\ the 
Department is no longer relying on the regression-based wage rate 
described in 19 CFR 351.408(c)(3). The Department is continuing to 
evaluate options for determining labor values in light of the recent 
CAFC decision. For these preliminary results, we have calculated an 
hourly wage rate to use in valuing the reported labor input by 
averaging earnings and/or wages in countries that are economically 
comparable to Vietnam and that are significant producers of comparable 
merchandise. For further information on the calculation of the wage 
rate, please see the Surrogate Value Memo.
---------------------------------------------------------------------------

    \22\ See Dorbest Ltd. v. United States, 604 F.3d 1363 (CAFC 
2010).
---------------------------------------------------------------------------

Currency Conversion

    Where necessary, the Department made currency conversions into U.S. 
dollars, in accordance with section 773A(a) of the Act, based on the 
exchange rates in effect on the dates of the U.S. sales, as certified 
by the Federal Reserve Bank.

Preliminary Results of the Review

    As a result of our review, we preliminarily find that the following 
margins exist for the period August 1, 2008, through July 31, 2009.

                Certain Frozen Fish Fillets From Vietnam
------------------------------------------------------------------------
                                                        Weighted-average
                 Manufacturer/Exporter                  margin  (Dollars
                                                         per  kilogram)
------------------------------------------------------------------------
(1) Vinh Hoan \23\....................................              4.22
(2) Vinh Quang........................................              2.44
(3) Agifish...........................................              4.22
(4) ESS LLC...........................................              4.22
(5) South Vina........................................              4.22
Vietnam-Wide Rate \24\................................              2.11
------------------------------------------------------------------------

    As a result of the new-shipper review, the Department preliminarily 
determines that a weighted-average dumping margin of $0.93 per kilogram 
exists for merchandise produced and exported by CL-Fish for the period 
August 1, 2008, through July 31, 2009.
---------------------------------------------------------------------------

    \23\ This rate is applicable to the Vinh Hoan Group which 
includes Vinh Hoan, Van Duc, and VD TG.
    \24\ This rate is applicable to Anvifish JSC.
---------------------------------------------------------------------------

    With respect to Anvifish JSC, although there is now evidence on the 
record of this review that Anvifish Co., Ltd. underwent a name change 
to become Anvifish JSC during the fourth administrative review,\25\ 
there is still insufficient information to determine if Anvifish JSC is 
in fact the successor in interest to Anvifish Co., Ltd. Therefore, the 
Department will issue a post-preliminary supplemental questionnaire

[[Page 56070]]

to determine if Anvifish JSC is the successor to Anvifish Co., Ltd. and 
if Anvifish JSC is entitled to use the rate assigned to Anvifish Co., 
Ltd. Until the Department determines otherwise, Anvifish JSC will 
remain part of the Vietnam-wide entity.
---------------------------------------------------------------------------

    \25\ See Anvifish JSC's submission, dated July 16, 2010.
---------------------------------------------------------------------------

Public Comment

    The Department will disclose to parties of this proceeding the 
calculations performed in reaching the preliminary results within five 
days of the date of announcement of the preliminary results. See 19 CFR 
351.224(b). An interested party may request a hearing within 30 days of 
publication of the preliminary results. See 19 CFR 351.310(c). 
Interested parties may submit written comments (case briefs) within 30 
days of publication of the preliminary results and rebuttal comments 
(rebuttal briefs), which must be limited to issues raised in the case 
briefs, within five days after the time limit for filing case briefs. 
See 19 CFR 351.309(c)(1)(ii) and 19 CFR 351.309(d). Parties who submit 
arguments are requested to submit with the argument: (1) A statement of 
the issue; (2) a brief summary of the argument; and (3) a table of 
authorities. Further, the Department requests that parties submitting 
written comments provide the Department with a diskette containing the 
public version of those comments. Unless the deadline is extended 
pursuant to section 751(a)(3)(A) of the Act, the Department will issue 
the final results of this administrative review, including the results 
of our analysis of the issues raised by the parties in their comments, 
within 120 days of publication of the preliminary results. The 
assessment of antidumping duties on entries of merchandise covered by 
this review and future deposits of estimated duties shall be based on 
the final results of this review.

Assessment Rates

    Upon completion of this administrative review, pursuant to 19 CFR 
351.212(b), the Department will calculate an assessment rate on all 
appropriate entries. For the mandatory respondents, Vinh Hoan and Vinh 
Quang, and new shipper, CL-Fish, we will calculate importer-specific 
duty assessment rates on a per-unit basis.\26\ Where the assessment 
rate is de minimis, we will instruct CBP to assess no duties on all 
entries of subject merchandise by that importer. We will instruct CBP 
to liquidate entries containing merchandise from the Vietnam-wide 
entity at the Vietnam-wide rate we determine in the final results of 
review. We intend to issue assessment instructions to CBP 15 days after 
the date of publication of the final results of review.
---------------------------------------------------------------------------

    \26\ We divided the total dumping margins (calculated as the 
difference between NV and EP or CEP) for each importer by the total 
quantity of subject merchandise sold to that importer during the POR 
to calculate a per-unit assessment amount. We will direct CBP to 
assess importer-specific assessment rates based on the resulting 
per-unit (i.e., per-kilogram) rates by the weight in kilograms of 
each entry of the subject merchandise during the POR.
---------------------------------------------------------------------------

Cash Deposit Requirements

    The following cash deposit requirements will be effective upon 
publication of the final results of this administrative review for all 
shipments of the subject merchandise entered, or withdrawn from 
warehouse, for consumption on or after the publication date, as 
provided for by section 751(a)(2)(C) of the Act: (1) For the exporters 
listed above, except for CL-Fish (see below), the cash deposit rate 
will be that established in the final results of this review (except, 
if the rate is zero or de minimis, the cash deposit will be zero); (2) 
for previously investigated or reviewed Vietnam and non-Vietnam 
exporters not listed above that have separate rates, the cash deposit 
rate will continue to be the exporter-specific rate published for the 
most recent period; (3) for all Vietnam exporters of subject 
merchandise which have not been found to be entitled to a separate 
rate, the cash deposit rate will be the Vietnam-wide rate of $2.11 per 
kilogram; and (4) for all non-Vietnam exporters of subject merchandise 
which have not received their own rate, the cash deposit rate will be 
the rate applicable to the Vietnam exporters that supplied that non-
Vietnam exporter. These deposit requirements, when imposed, shall 
remain in effect until further notice.
    The following cash deposit requirements will be effective upon 
publication of the final results of this review for all shipments of 
subject merchandise from new shipper CL-Fish 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 an