Certain Frozen Fish Fillets From the Socialist Republic of Vietnam: Preliminary Results and Partial Rescission of the Seventh Antidumping Duty Administrative Review, 55872-55880 [2011-23154]
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Certain Frozen Fish Fillets From the
Socialist Republic of Vietnam:
Preliminary Results and Partial
Rescission of the Seventh
Antidumping Duty Administrative
Review
Import Administration,
International Trade Administration,
Department of Commerce.
AGENCY:
The Department of Commerce
(‘‘Department’’) is conducting an
administrative review of the
antidumping duty order on certain
frozen fish fillets from the Socialist
SUMMARY:
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Republic of Vietnam (‘‘Vietnam’’).1 The
Department has preliminarily
determined that QVD Food Company,
Ltd. (‘‘QVD’’) sold subject merchandise
at less than normal value (‘‘NV’’) and
that Vinh Hoan Corporation (‘‘Vinh
Hoan’’) 2 did not sell merchandise below
NV during the period of review
(‘‘POR’’), August 1, 2009, through July
31, 2010.
DATES: Effective Date: September 9,
2011.
FOR FURTHER INFORMATION CONTACT:
Alexis Polovina or Javier Barrientos,
AD/CVD Operations, Office 9, Import
Administration, International Trade
Administration, U.S. Department of
Commerce, 14th Street and Constitution
Avenue, NW., Washington, DC 20230;
telephone: (202) 482–3927 or (202) 482–
2243, respectively.
SUPPLEMENTARY INFORMATION:
Case History
On August 2, 2010, the Department
published a notice of an opportunity to
request an administrative review of the
Order.3 The Department received review
requests for 26 companies from
Petitioners 4 and certain individual
companies.
On September 22, 2010, the
Department initiated the August 1,
2009, through July 31, 2010,
antidumping duty administrative review
on certain frozen fish fillets from
Vietnam.5 The Department initiated this
review with respect to 26 companies.6
1 See Notice of Antidumping Duty Order: Certain
Frozen Fish Fillets From the Socialist Republic of
Vietnam, 68 FR 47909 (August 12, 2003) (‘‘Order’’).
2 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 19 CFR 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.
3 See Antidumping or Countervailing Duty Order,
Finding, or Suspended Investigation; Opportunity
To Request Administrative Review, 75 FR 45094
(August 2, 2010).
4 This includes: 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. (‘‘Petitioners’’)
5 See Initiation of Antidumping and
Countervailing Duty Administrative Reviews and
Requests for Revocation, 75 FR 60076 (September
29, 2010) (‘‘Initiation’’).
6 This includes: (1) An Giang Fisheries Import
and Export Joint Stock Company (aka Agifish or
AnGiang Fisheries Import and Export) (‘‘Agifish’’);
(2) Anvifish Co., Ltd.; (3) Anvifish Joint Stock
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On January 7, 2011, the Department
issued a letter to all interested parties
informing them of its decision to select
the two largest exporters of subject
merchandise during the POR, based on
U.S. Customs and Borders Protection
(‘‘CBP’’) import data, Vinh Hoan and
QVD, (‘‘Respondents’’), as mandatory
respondents.7
On January 7, 2011, the Department
issued the antidumping questionnaire.
Between January 28, 2011, and July 13,
2011, Vinh Hoan and QVD submitted
responses to the original and
supplemental sections A, C, and D
questionnaires.
On March 29, 2011, and May 19,
2011, the Department extended the
deadlines for parties to file surrogate
country comments and surrogate value
data.8 Between May 10, 2011, and July
29, 2011, the Department received
surrogate country and value comments
Company (aka Anvifish JSC); (4) Asia Commerce
Fisheries Joint Stock Company (‘‘Acomfish JSC’’)
(‘‘Acomfish’’); (5) Bien Dong Seafood Co., Ltd.
(‘‘Bien Dong Seafood’’); (6) Binh An Seafood Joint
Stock Co. (‘‘Binh An’’); (7) Cadovimex II Seafood
Import-Export and Processing Joint Stock Company;
(aka Cadovimex II) (‘‘Cadovimex II’’); (8) Cantho
Import-Export Seafood Joint Stock Company
(‘‘CASEAMEX’’); (9) CUU Long Fish Joint Stock
Company (aka CL–Fish) (‘‘CL Fish’’); (10) East Sea
Seafoods Limited Liability Company (formerly
known as East Sea Seafoods Joint Venture Co., Ltd.)
(ESS LLC’’); (11) East Sea Seafoods Joint Venture
Co., Ltd.; (12) East Sea Seafoods LLC; (13) Hiep
Thanh Seafood Joint Stock Co. (‘‘Hiep Thanh’’); (14)
International Development & Investment
Corporation (also known as IDI) (‘‘IDI’’); (15) Nam
Viet Company Limited (aka NAVICO) (‘‘Nam Viet’’);
(16) Nam Viet Corporation; (17) NTSF Seafoods
Joint Stock Company (‘‘NTSF’’); (18) QVD Food
Company, Ltd. (‘‘QVD’’); (19) QVD Dong Thap Food
Co., Ltd. (‘‘QVD DT’’); (20) Saigon-Mekong Fishery
Co., Ltd. (aka SAMEFICO) (‘‘SAMEFICO’’); (21)
Southern Fishery Industries Company, Ltd. (aka
South Vina) (‘‘South Vina’’); (22) Thien Ma Seafood
Co., Ltd. (‘‘THIMACO’’); (23) Thuan Hung Co., Ltd.
(aka THUFICO) (‘‘Thuan Hung’’); (24) Vinh Hoan
Corporation (‘‘Vinh Hoan’’); (25) Vinh Hoan
Company, Ltd.; and (26) Vinh Quang Fisheries
Corporation (‘‘Vinh Quang’’).
7 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 January 7, 2011.
8 See Memorandum to the File, from Alexis
Polovina, Case Analyst, through Matthew Renkey,
Acting 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 March 29,
2011, and Memorandum to the File, from Alexis
Polovina, Case Analyst, through Matthew Renkey,
Acting Program Manager, Administrative Review of
Certain Frozen Fish Fillets from the Socialist
Republic of Vietnam: Extension Request for
Rebuttal Surrogate Country Selection Comments
and Surrogate Value Submissions, dated May 19,
2011.
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16:58 Sep 08, 2011
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and rebuttal comments from interested
parties.
On April 13, 2011, the Department
published in the Federal Register a
notice fully extending the time period
for issuing the preliminary results in
these reviews to August 31, 2011.9
On August 4, 2011, the Department
partially rescinded the administrative
review with respect to five companies.10
Therefore, 19 companies remain in this
administrative review: (1) Anvifish Co.,
Ltd.; (2) Anvifish JSC; (3) Acomfish; (4)
Bien Dong Seafood; (5) Binh An; (6)
CASEAMEX; (7) CL Fish; (8) ESS LLC; 11
(9) East Sea Seafoods Joint Venture Co.,
Ltd.; (10) Hiep Thanh; (11) IDI; (12)
NTSF; (13) QVD; (14) QVD DT; (15)
South Vina; (16) THIMACO; (17) Thuan
Hung; (18) Vinh Hoan; 12 and (19) Vinh
Quang.
Request for Revocation
On April 20, 2011, Vinh Hoan and
QVD requested revocation on the basis
that they did not sell subject
merchandise for less than NV
consecutively for three years. However,
pursuant to 19 CFR 351.222(e), the
request for revocation must be made
during the anniversary month. The
anniversary month for this review was
August 2010, making these requests 232
days late. On May 4, 2011, Petitioners
submitted comments urging the
Department to reject these requests as
untimely. On May 19, 2011, Vinh Hoan
and QVD responded to Petitioners’
comments. As these requests were made
232 days after the anniversary month,
the Department is not considering Vinh
Hoan and QVD’s revocation requests.
Vietnam-Wide Entity
As discussed above, in this
administrative review we limited the
selection of respondents to be
individually examined using CBP
import data.13 In this case, we made
available to the companies who were
not selected the separate rates
9 See Certain Frozen Fish Fillets From the
Socialist Republic of Vietnam: Extension of Time
Limit for Preliminary Results of the Seventh
Antidumping Duty Administrative Review, 76 FR
20626 (April 13, 2011).
10 These companies include: (1) Agifish; (2) Nam
Viet; (3) Nam Viet Corporation; (4) SAMEFICO; and
(5) Cadovimex II. See Certain Frozen Fish Fillets
From the Socialist Republic of Vietnam: Notice of
Partial Rescission of the Seventh Antidumping Duty
Administrative Review, 76 FR 47149 (August 4,
2011).
11 We note that the initiation notice contained
both ESS LLC and East Sea Seafoods LLC, however,
they appear to be iterations of the same name.
12 We note that the initiation notice contained
both Vinh Hoan Company, Ltd. and Vinh Hoan
Corporation. However, they are the same company.
Prior to August 2007, Vinh Hoan Corporation was
known as Vinh Hoan Company, Ltd.
13 See Respondent Selection Memo.
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55873
application and certification, which
were put on the Department’s Web
site.14 Because some parties for which a
review was requested did not apply for
separate rate status, the Vietnam-Wide
entity is considered to be under review
in this segment of the proceeding.
Preliminary Partial Rescission of
Administrative Review
Pursuant to 19 CFR 351.213(d)(3), the
Department has preliminarily
determined that four companies made
no shipments of subject merchandise
during the POR of this administrative
review, (1) IDI; (2) CL–Fish; (3)
THIMACO; and (4)NTSF. On October 5,
2010, the Department received noshipment certifications from IDI, CL–
Fish, THIMACO, and NTSF. However,
according to entry statistics obtained
from CBP, and placed on the record, IDI
and THIMACO had an entry of subject
merchandise during the POR.
The Department issued no-shipment
inquiries to CBP requesting any
information for merchandise
manufactured and shipped by either IDI
or THIMACO during the POR. The
Department did receive a response from
CBP regarding THIMACO, however,
both of IDI and THIMACO’s entries have
already been reviewed in the recently
completed new shipper reviews.15 We
confirmed the entries CBP identified
were the same as those reviewed in the
09–10 NSR. Consequently, we are
preliminarily rescinding the reviews
with respect to IDI, CL–Fish, THIMACO,
and NTSF.
Separate Rates
A designation as a non-market
economy (‘‘NME’’) remains in effect
until it is revoked by the Department.
See section 771(18)(C) of the Tariff Act
of 1930, as amended (‘‘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
14 See
Initiation.
Certain Frozen Fish Fillets From the
Socialist Republic of Vietnam: Final Results of the
Antidumping Duty New Shipper Reviews, 76 FR
35403 (June 17, 2011) (‘‘09–10 NSR’’).
15 See
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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’’).
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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 this review, 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.16
In this review, in addition to the two
mandatory respondents, Anvifish Co.,
Ltd., Anvifish JSC, Acomfish, Bien Dong
Seafood, Binh An, CASEAMEX, ESS
LLC, East Sea Seafoods Joint Venture
Co., Ltd., Hiep Thanh, South Vina, and
Vinh Quang, submitted complete
separate rate certifications and
applications. 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
16 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).
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and sign contracts and other
agreements; and (4) has autonomy from
the government regarding the selection
of management.17
In this review, in addition to the two
mandatory respondents, Anvifish Co.,
Ltd., Anvifish JSC, Acomfish, Bien Dong
Seafood, Binh An, CASEAMEX, ESS
LLC, East Sea Seafoods Joint Venture
Co., Ltd., Hiep Thanh, South Vina, and
Vinh Quang, submitted evidence
indicating an absence of de facto
government control over their export
activities. Specifically, this evidence
indicates that: (1) Each company sets its
own export prices independent of the
government and without the approval of
a government authority; (2) each
company retains the proceeds from its
sales and makes independent decisions
regarding the disposition of profits or
financing of losses; (3) each company
has a general manager, branch manager
or division manager with the authority
to negotiate and bind the company in an
agreement; (4) the general managers are
selected by the board of directors or
company employees, and the general
managers appoint the deputy managers
and the manager of each department;
and (5) there is no restriction on any of
the companies’ use of export revenues.
Therefore, the Department preliminarily
finds that in this review, Vinh Hoan,
QVD, Anvifish Co., Ltd., Anvifish JSC,
Acomfish, Bien Dong Seafood, Binh An,
CASEAMEX, ESS LLC, East Sea
Seafoods Joint Venture Co., Ltd., Hiep
Thanh, South Vina, and Vinh Quang,
have established that they qualify for
separate rates under the criteria
established by Silicon Carbide and
Sparklers.
Rate for Non-Selected Companies
In this review there are 11 companies
that are not presently selected for
individual examination.18 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 when 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
17 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).
18 These companies include: (1) Anvifish Co.,
Ltd.; (2) Anvifish JSC; (3) Acomfish; (4) Bien Dong
Seafood (5) Binh An; (6) CASEAMEX (7) ESS LLC;
(8) East Sea Seafoods Joint Venture Co., Ltd.; (9)
Hiep Thanh; (10) South Vina; and (11) Vinh Quang.
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did not examine in an administrative
review. Section 735(c)(5)(A) of the Act
articulates a preference that we are not
to calculate an all-others rate using any
zero or de minimis margins or any
margins based entirely on facts
available. Accordingly, the
Department’s usual practice has been to
average the rates for the selected
companies, excluding zero, de minimis
and rates based entirely on facts
available.19 Section 735(c)(5)(B) of the
Act also provides that, where all
margins are zero, de minimis, or based
entirely on facts available, we may use
‘‘any reasonable method’’ for assigning
the rate to non-selected respondents,
including ‘‘averaging the estimated
weighted-average dumping margins
determined for the exporters and
producers individually investigated.’’
For this administrative review, the
Department has calculated positive
margins for one mandatory respondent,
QVD. 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 one of the mandatory
respondents, QVD. The rate established
for the separate rate respondents is a
per-unit rate of $0.56 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 the order is
frozen fish fillets, including regular,
shank, and strip fillets and portions
thereof, whether or not breaded or
marinated, of the species Pangasius
Bocourti, Pangasius Hypophthalmus
(also known as Pangasius Pangasius),
and Pangasius Micronemus. Frozen fish
fillets are lengthwise cuts of whole fish.
The fillet products covered by the scope
include boneless fillets with the belly
flap intact (‘‘regular’’ fillets), boneless
fillets with the belly flap removed
(‘‘shank’’ fillets), boneless shank fillets
cut into strips (‘‘fillet strips/finger’’),
which include fillets cut into strips,
chunks, blocks, skewers, or any other
shape. Specifically excluded from the
scope are frozen whole fish (whether or
not dressed), frozen steaks, and frozen
belly-flap nuggets. Frozen whole
dressed fish are deheaded, skinned, and
eviscerated. Steaks are bone-in, cross19 See Ball Bearings and Parts Thereof from
France, Germany, Italy, Japan, and the United
Kingdom: Final Results of Antidumping Duty
Administrative Reviews and Rescission of Review in
Part, 73 FR 52823, 52824 (September 11, 2008) and
accompanying Issues and Decision Memorandum at
Comment 16.
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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’’).20 The order
covers all frozen fish fillets meeting the
above specification, regardless of tariff
classification. Although the HTSUS
subheading is provided for convenience
and customs purposes, our written
description of the scope of the order is
dispositive.
Non-Market Economy Country Status
In every case conducted by the
Department involving Vietnam, Vietnam
has been treated as an NME country. In
accordance with section 771(18)(C)(i) of
the Act, any determination that a foreign
country is an NME country shall remain
in effect until revoked by the
administering authority.21 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 February 1, 2011, 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 May
10, 2011, and July 29, 2011, Vinh Hoan,
QVD, the Vietnam Association of
Seafood Exporters and Producers
(‘‘VASEP’’), and 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
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20 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.
21 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’’).
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market economy (‘‘ME’’) 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 ME countries
that are: (1) At a level of economic
development comparable to that of the
NME country; and (2) significant
producers of comparable merchandise.
Regarding economic comparability,
Respondents argue that the Philippines
is not economically comparable to
Vietnam. However, as explained in our
list of surrogate countries, the
Department considers Bangladesh, the
Philippines, Indonesia, India, Sri Lanka,
and Pakistan all comparable to Vietnam
in terms of economic development.22
Section 773(c)(4)(A) of the Act is silent
with respect to how the Department
may determine that a country is
economically comparable to the NME
country. As such, the Department’s long
standing practice has been to identify
those countries which are at a level of
economic development similar to
Vietnam in terms of gross national
income (‘‘GNI’’) data available in the
World Development Report provided by
the World Bank.23 In this case, the GNI
available are based on data published in
2010. The GNI levels for the list of
potential surrogate countries ranged
from $520 to $2,010.24 The Department
is satisfied that they are equally
comparable in terms of economic
development and serve as an adequate
group to consider when gathering
surrogate value data. Further, providing
parties with a range of countries with
varying GNIs is reasonable given that
any alternative would require a
complicated analysis of factors affecting
the relative GNI differences between
Vietnam and other countries which is
not required by the statute. In contrast,
by identifying countries that are
economically comparable to Vietnam
based on GNI, the Department provides
parties with a predictable practice
which is also reasonable and consistent
with the statutory requirements.
Identifying potential surrogate countries
based on GNI data has been affirmed by
the Court of International Trade
(‘‘CIT’’).25
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.26 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 2008 export data from the
United Nations Food and Agriculture
Organization,27 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.28 In this case, the whole fish
input is the most significant input
because it accounts for the largest
percentage of 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 from Sri Lanka
or 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
Bangladesh, the Philippines, Indonesia,
and India.
22 See Memorandum from Carole Showers,
Director, Office of Policy, to Alex Villanueva,
Program Manager, AD/CVD Enforcement, Office 9:
Request for a list of Surrogate Countries for an
Administrative Review of the Antidumping Duty
Order on Certain Frozen Fish Fillets (‘‘Fish Fillets’’)
from the Socialist Republic of Vietnam, dated
January 31, 2011 (‘‘Surrogate Country List’’).
23 See Pure Magnesium from the People’s
Republic of China: Final Results of the 2008–2009
Antidumping Duty Administrative Review of the
Antidumping Duty Order, 75 FR 80791 (December
23, 2010) and accompanying Issues and Decision
Memorandum at Comment 4.
24 See Surrogate Country List.
25 See Fujian Lianfu Forestry Co., Ltd. v. United
States, 638 F. Supp. 2d 1325 (Ct. Int’l Trade 2009).
26 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).
27 See Memorandum to the File through Matthew
Renkey, Acting Program Manager, Office 9, from
Alexis Polovina, Case Analyst, dated August 31,
2011 (‘‘Surrogate Value Memo’’) at Attachment I.
28 See Department Policy Bulletin No. 04.1: NonMarket Economy Surrogate Country Selection
Process (March 1, 2004).
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Bangladesh
VASEP placed the Bangladeshi
Department of Agriculture Marketing,
Ministry of Agriculture, pangas price
data (‘‘DAM data’’) on the record.29 The
Department issued a letter to the
Bangladeshi Department of Agriculture
Marketing, requesting among other
things, more information regarding the
publicly availability of the DAM data.30
We have yet to receive a response from
the Bangladeshi Department of
Agriculture Marketing.
Philippines
Petitioners placed the Fisheries
Statistics of the Philippines, 2007–2009,
published by the Philippines Bureau of
Agricultural Statistics, Department of
Agriculture (‘‘Fisheries Statistics’’), on
the record.31 The Department issued a
letter to the Philippines Bureau of
Agricultural Statistics (‘‘BAS’’),
requesting among other things, more
information regarding the publicly
availability of the Fisheries Statistics.32
We received a response from the
Philippines BAS, which we placed on
the record.33
Indonesia
The Department placed Indonesian
price and quantity data from the United
Nations Food and Agriculture
Organization’s Fisheries Global
Information System (‘‘FIGIS data’’).34
India
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VASEP placed the Present Status of
the Pangasius, PangasianodonHypophthalmus Farming in Andhra
29 See VASEP’s First Surrogate Value Submission,
dated May 10, 2011, at Exhibit 13A.
30 See Letter to Fahmida Akhter, Deputy Director
Department of Department of Agricultural
Marketing from Matthew Renkey, Acting Program
Manager: Questions for the Bangladeshi Department
of Agricultural Marketing Regarding National
Wholesale Price Data, dated June 23, 2011.
31 See Petitioners’ Surrogate Country Comments
and Submission of Proposed Factor Values, dated
May 10, 2011, at Exhibit 9–A.
32 See Letter to Romeo S. Recide, Director, Bureau
of Agriculture Statistics, from Matthew Renkey,
Acting Program Manager: Questions for the
Philippine Bureau of Agriculture Statistics
Regarding Price Data in the Fisheries Statistics of
the Philippines, dated June 23, 2011; and Letter to
Fahmida Akhter, Deputy Director Department of
Department of Agricultural Marketing from
Matthew Renkey, Acting Program Manager:
Questions for the Bangladeshi Department of
Agricultural Marketing Regarding National
Wholesale Price Data, dated June 23, 2011.
33 See Memorandum to the File, from Javier
Barrientos, Senior Case Analyst, Regarding
Response to Questions for the Philippine Bureau of
Agriculture Statistics Regarding Price Data in the
Fisheries Statistics of the Philippines, dated July 15,
2011.
34 See Memorandum to the File, from Alexis
Polovina, Case Analyst, dated July 15, 2011.
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Pradesh, India (‘‘Pangasius Study’’), on
the record.35
Analysis
When evaluating surrogate value data,
the Department considers several factors
including whether the surrogate value is
publicly available, contemporaneous
with the POR, represents a broad market
average, from an approved surrogate
country, tax and duty-exclusive, and
specific to the input. There is no
hierarchy; it is the Department’s
practice to carefully consider the
available evidence in light of the
particular facts of each industry when
undertaking its analysis.
First, we note that the Pangasius
Study regarding India is a ‘‘first
attempt’’ 36 study undertaken by a
professor with estimated production
quantities. When compared to the other
sources on the record, we find that the
Pangasius Study is not an appropriate
source because there is uncertainty
regarding public availability and broad
market average. There is no information
on how the study was obtained, or on
the data collection methods, making it
difficult to determine public availability
or if the study represents a broad market
average.37 Furthermore, the study
appears to be based on estimates for one
Indian state.38 Therefore, we find that
the Pangasius Study is not the most
suitable source on the record for
purposes of these preliminary results.
We note that both Petitioners and
Respondents claim that both Bangladesh
and the Philippines’ Pangasius
industries receive government
assistance, in the forms of techno-farms
and education, and should therefore, be
disregarded as surrogate countries.
However, the Department’s practice is to
exclude data from consideration only
when the record evidence demonstrates
that the alleged subsidy programs
constituted countervailable subsidies.39
In this case, as we have found in prior
reviews, there is no record evidence that
the subsidies alleged by Petitioners and
35 See VASEP’s First Surrogate Value Submission,
dated May 10, 2011, at Exhibit 32A.
36 See Pangasius Study at 1.
37 Other than stating the report was compiled over
15 days based on farmer interviews and farm visits,
there is no information regarding the data collection
methods (i.e., how the farms were selected, the
number of farms selected, and who collected the
data).
38 See Pangasius Study at 28.
39 See Freshwater Crawfish Tail Meat from the
People’s Republic of China: Notice of Final Results
And Rescission, In Part, of 2004/2005 Antidumping
Duty Administrative and New Shipper Reviews, 72
FR 19174 (April 17, 2007) and accompanying Issues
and Decision Memorandum at Comment 1, and
Silicon Metal and accompanying Issues and
Decision Memorandum at Comment 2.
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Respondents constitute countervailing
subsidies.
With respect to the DAM data,
Fisheries Statistics, and the FIGIS data,
we note that all are from approved
surrogate countries, sufficiently specific
to the input in question, tax and duty
exclusive, and contemporaneous with
the POR.
As noted above, Petitioners have
raised concerns regarding the public
availability of the DAM data. The
Department issued letters to both the
Bangladeshi Department of Agriculture
Marketing and the Philippines Bureau
of Agricultural Statistics, requesting
among other things, more information
regarding the publicly availability of
both the DAM data and the Fisheries
Statistics.40 While we received a
response from the Philippines Bureau of
Agricultural Statistics, we have yet to
receive a response from the Bangladeshi
Department of Agriculture Marketing,
and are therefore, at this time, unable to
independently ascertain the public
availability of the DAM data. While the
DAM data are not published, the record
contains a letter from the Deputy
Director of DAM stating that the data
‘‘* * * can be provided to any member
of the public upon request, free of
cost.’’ 41 The record, however, also
contains an affidavit from a Barrister at
Law in Bangladesh, retained by
Petitioners the contents of which raise
concerns regarding the public
availability of this data. The affiant
stated while meeting with the Director
and Assistant Director of DAM, the
DAM officials explained that ‘‘* * *
DAM does not, as a matter of course,
provide the pangas wholesale price data
to members of the public * * *’’ 42
Regarding the DAM data on the record,
according to the affidavit submitted by
Petitioners, the DAM officials explained
that the Deputy Director ‘‘must have
been instructed to do so be a superior
40 See Letter to Romeo S. Recide, Director, Bureau
of Agriculture Statistics, from Matthew Renkey,
Acting Program Manager: Questions for the
Philippine Bureau of Agriculture Statistics
Regarding Price Data in the Fisheries Statistics of
the Philippines, dated June 23, 2011; and Letter to
Fahmida Akhter, Deputy Director, Department of
Agricultural Marketing from Matthew Renkey,
Acting Program Manager: Questions for the
Bangladeshi Department of Agricultural Marketing
Regarding National Wholesale Price Data, dated
June 23, 2011.
41 See VASEP’s Letter to the Secretary of
Commerce, Regarding VASEP’s First Surrogate
Value Submission: 7th Administrative Review of
Frozen Fish Fillets from the Socialist Republic of
Vietnam, at Exhibits 13A and 13B, dated May 10,
2011.
42 See Petitioner’s Letter to the Secretary of
Commerce, Regarding Seventh Administrative
Review of Certain Frozen Fish Fillets from Vietnam:
Submission of Additional Rebuttal Information on
DAM Price Data, at Exhibit 1, dated July 25, 2011.
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official as it is not the DAM’s practice
to issue such letters to any member of
the public.’’ 43
As a result of the uncertainty
regarding public availability of the DAM
data, we find that Bangladesh does not
provide the best available information
with respect to valuation of whole live
fish for purposes of these preliminary
results. Therefore, the FIGIS data and
the Fisheries Statistics remain. When
considering specificity to the input, as
we have found in prior reviews, the
Fisheries Statistics are specific to the
species, pangasius hypophthalmus.44
As noted above, the FIGIS data indicate
specificity only to the genus level,
Pangasius; however, the record also
contains a 2005 World Wildlife Fund
article indicating that Indonesia is the
second largest producer of pangasius
behind Vietnam, and that the majority
of farmed pangasius is that of
Pangasianodon hypothalamus. With
respect to broad market average, the
FIGIS data indicate that the Indonesian
Pangasius industry has grown in size
every year since 2006, to 109,685 MT,
while the survey size of the Fisheries
Statistics now represents only 34.34 MT
for 2009. While we note the FIGIS data
only contain one data point for the
whole country, this one data point
represents a significant volume.
Additionally, the observations the
Department made in the previous
reviews,45 with respect to the Fisheries
Statistics, and for that matter the DAM
data, still remain, and we note these
observations concerning the FIGIS data
do not exist.
Based on the analysis above, we find
that the FIGIS data represent a more
reliable broad market average for
purposes of valuing whole live fish.
Therefore, for the preliminary results,
the Department will select Indonesia as
the primary surrogate country. We
recognize, with respect to determining
surrogate financial ratios, that we have
no useable financial statements on the
record at this time with respect to
Indonesia. As Bangladesh satisfies the
remaining criteria for selection of
surrogate country and because the
record contains numerous sources from
Bangladesh, we find it a suitable
secondary surrogate country. Thus, we
intend to rely on financial statements
from Bangladesh, the secondary
surrogate country, for purposes of these
preliminary results. The record contains
three financial statements from
Bangladesh, including two of which are
from vertically integrated companies,
matching the production experience of
the mandatory respondents.
We hereby invite parties to submit
additional comments to 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 or director of an
organization and such organization;
(C) Partners;
(D) Employer and employee;
(E) Any person directly or indirectly
owning, controlling, or holding with
power to vote, 5 percent or more of the
outstanding voting stock or shares of
any organization and such organization;
(F) Two or more persons directly or
indirectly controlling, controlled by, or
under common control with, any
person;
(G) Any person who controls any
other person and such other person.
Additionally, section 771(33) of the
Act stipulates that: ‘‘For purposes of this
paragraph, a person shall be considered
to control another person if the person
is legally or operationally in a position
to exercise restraint 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.46
Vinh Hoan
In the final results of the sixth
antidumping duty administrative
review, the Department determined that
Vinh Hoan was affiliated with Vinh
Hoan Feed 1 Company (‘‘Vinh Hoan
Feed’’), Vinh Hoan USA, Van Duc Food
Export Joint Company (‘‘Van Duc’’), and
Van Duc Tien Giang (‘‘VD TG’’). The
Department also determined that Vinh
Hoan, Van Duc, and VD TG should be
treated as a single entity. See 6th AR
Final.47 The Department did not
46 See
43 Id.
44 See
45 See
19 CFR 351.401(f)(1) and (2).
Certain Frozen Fish Fillets From the
Socialist Republic of Vietnam: Final Results of the
Sixth Antidumping Duty Administrative Review
47 See
6th AR and 09–10 NSR.
6th AR at 9–14, and 09–10 NSR at 10–15.
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55877
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 continues to find that Vinh
Hoan is affiliated with Vinh Hoan Feed,
Vinh Hoan USA, Van Duc, and VD TG,
pursuant to section 771(33) of the Act.48
The Department also preliminarily finds
that Vinh Hoan, Van Duc, and VD TG,
should be treated as a single entity for
purposes of this administrative
review.49 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 (i.e., freezing machines) in
order to produce comparable
merchandise.50 Therefore, pursuant to
19 CFR 351.401(f)(1) and (2), the
Department preliminarily 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.
QVD
In the final results of the fifth
antidumping duty administrative
review, the Department determined that
QVD and QVD USA are affiliated
pursuant to sections 771(33)(A), (B), (E),
(F), and (G) of the Act.51 The
Department also determined that QVD,
QVD DT, and Thuan Hung should be
collapsed and treated as a single
entity.52 The Department preliminarily
finds that QVD, QVD DT, and Thuan
Hung are all under common control of
the principal owner allowing for
significant potential for price
manipulation or production. Based on
evidence submitted by QVD in this
administrative review, the Department
continues to find that QVD, QVD DT,
and Sixth New Shipper Review, 76 FR 15941
(March 22, 2011).
48 See Vinh Hoan’s Section A Response at 16–18,
dated January 28, 2011.
49 See 19 CFR 351.401(f)(1) and (2).
50 See Vinh Hoan’s Supplemental section A
Response at 3, dated March 17, 2011.
51 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 Final’’).
52 Id.
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and Thuan Hung should be collapsed
and treated as a single entity and that
QVD and QVD USA are affiliated
pursuant to sections 771(33)(A), (B), (E),
(F), and (G) of the Act. See QVD’s
Section A at 1.
Fair Value Comparisons
To determine whether sales of the
subject merchandise made by Vinh
Hoan and QVD to the United States
were at prices below NV, we compared
each company’s export price (‘‘EP’’) or
constructed export price (‘‘CEP’’), where
appropriate, to NV, as described below.
U.S. Price
B. Constructed Export Price
For Vinh Hoan’s and QVD’s CEP
sales, we used the CEP methodology
when the first sale to an unaffiliated
purchaser occurred after importation of
the merchandise into the United States.
To calculate CEP, 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.
Factor Valuation Methodology
In accordance with 19 CFR
351.408(c)(1), the Department will
normally use publicly available
information to value the FOPs, but
when a producer sources an input from
a ME country and pays for it in an ME
currency, the Department may value the
factor using the actual price paid for the
input. During the POR, Vinh Hoan
reported that it purchased certain
inputs, and international freight, from
an ME suppliers and paid for the inputs
in a ME currency.53 During the POR,
QVD reported that it incurred
international freight from a ME carrier
and paid it a market economy currency.
See QVD’s Supplemental Section C at
Exhibit 4, dated April 17, 2011. The
Department has a rebuttable
presumption that ME input prices are
the best available information for
valuing an input when the total volume
of the input purchased from all ME
sources during the period of
investigation or review exceeds 33
percent of the total volume of the input
purchased from all sources during the
period. See Antidumping
Methodologies: Market Economy Inputs,
Expected Non-Market Economy Wages,
Duty Drawback; and Request for
Comments, 71 FR 61716, 61717–18
(October 19, 2006) (‘‘Antidumping
Methodologies’’).
In this case, unless case-specific facts
provide adequate grounds to rebut the
Department’s presumption, the
Department will use the weightedaverage ME purchase price to value the
input. Alternatively, when the volume
of an NME firm’s purchases of an input
from ME suppliers during the period is
below 33 percent of its total volume of
purchases of the input during the
period, but where these purchases are
otherwise valid and there is no reason
to disregard the prices, the Department
Normal Value
Section 773(c)(1) of the Act provides
that, in the case of an NME, the
53 See Vinh Hoan’s Section D, dated February 23,
2011, and Supplemental Section D, dated May 9,
2011.
A. Export Price
For Vinh Hoan’s EP sales, we used the
EP methodology, pursuant to section
772(a) of the Act, because the first sale
to an unaffiliated purchaser was made
prior to importation. To calculate EP,
we 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.
mstockstill on DSK4VPTVN1PROD with NOTICES
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 and QVD pursuant to
sections 773(c)(3) and (4) of the Act and
19 CFR 351.408(c).
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will weight-average the ME purchase
price with an appropriate SV according
to their respective shares of the total
volume of purchases, unless casespecific facts provide adequate grounds
to rebut the presumption.54 When a firm
has made ME input purchases that may
have been dumped or subsidized, are
not bona fide, or are otherwise not
acceptable for use in a dumping
calculation, the Department will
exclude them from the numerator of the
ratio to ensure a fair determination of
whether valid ME purchases meet the
33 percent threshold.55
As the basis for NV, Vinh Hoan and
QVD provided FOPs used in each of the
stages for producing frozen fish fillets.
The Department’s general policy,
consistent with section 773(c)(1) 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 and QVD’s reported
per-unit factor quantities using publicly
available Indonesian, Bangladeshi, and
Philippine surrogate values. Indonesia
is our primary surrogate country source
from which to obtain data to value
inputs, and when data were not
available from Indonesia, we used
Bangladeshi, and Philippine, 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.56 In
this regard, the Department has
previously found that it is appropriate
to disregard such prices from India,
Indonesia, South Korea and Thailand
54 See
Antidumping Methodologies.
Antidumping Methodologies.
56 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.
55 See
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because we have determined that these
countries maintain broadly available,
non-industry specific export
subsidies.57 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.
mstockstill on DSK4VPTVN1PROD with NOTICES
Labor
Section 733(c) of the Act, provides
that the Department will value the FOPs
in NME cases using the best available
information regarding the value of such
factors in a ME country or countries
considered to be appropriate by the
administering authority. The Act
requires that when valuing FOPs, the
Department utilize, to the extent
possible, the prices or costs of FOPs in
one or more ME countries that are (1) At
a comparable level of economic
development and (2) significant
producers of comparable
merchandise.58
Previously, the Department used
regression-based wages that captured
the worldwide relationship between per
capita GNI and hourly manufacturing
wages, pursuant to 19 CFR
351.408(c)(3), to value the respondent’s
cost of labor. However, on May 14,
2010, the Court of Appeals for the
Federal Circuit (‘‘CAFC’’), in Dorbest
Ltd. v. United States, 604 F.3d 1363,
1372 (Fed. Cir. 2010) (‘‘Dorbest’’),
invalidated 19 CFR 351.408(c)(3). As a
consequence of the CAFC’s ruling in
57 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 4–5; Expedited Sunset Review of
the Countervailing Duty Order on Certain Cut-toLength Carbon Quality Steel Plate from Indonesia,
70 FR 45692 (August 8, 2005) and accompanying
Issues and Decision Memorandum at 4; CorrosionResistant 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 17, 19–20; and 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 23.
58 See section 773(c)(4) of the Act.
VerDate Mar<15>2010
16:58 Sep 08, 2011
Jkt 223001
Dorbest, the Department no longer relies
on the regression-based wage rate
methodology described in its
regulations. On February 18, 2011, the
Department published in the Federal
Register a request for public comment
on the interim methodology, and the
data sources.59
On June 21, 2011, the Department
revised its methodology for valuing the
labor input in NME antidumping
proceedings.60 In Labor Methodologies,
the Department determined that the best
methodology to value the labor input is
to use industry-specific labor rates from
the primary surrogate country.
Additionally, the Department
determined that the best data source for
industry-specific labor rates is Chapter
6A: Labor Cost in Manufacturing, from
the International Labor Organization
(‘‘ILO’’) Yearbook of Labor Statistics
(‘‘Yearbook’’).
In this review, however, the
Department has selected Indonesia as
the surrogate country. Because
Indonesia does not report labor data to
the ILO under Chapter 6A, for these
preliminary results, we are unable to
use ILO’s Chapter 6A data to value the
Respondents’ labor wage and instead
will use industry-specific wage rate
using earnings or wage data reported
under ILO’s Chapter 5B. The
Department finds the two-digit
description under ISIC–Revision 3
(‘‘Manufacture of Food Products and
Beverages’’) to be the best available
information on the record because it is
specific to the industry being examined,
and is therefore derived from industries
that produce comparable merchandise.
Accordingly, relying on Chapter 5B of
the Yearbook, the Department
calculated the labor input using labor
data reported by Indonesia to the ILO
under Sub-Classification 15 of the ISIC–
Revision 3 standard, in accordance with
Section 773(c)(4) of the Act. For these
preliminary results, the calculated wage
rate is 4,298.06 Indonesian Rupiahs per
hour. A more detailed description of the
wage rate calculation methodology is
provided in 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
59 See Antidumping Methodologies in
Proceedings Involving Non-Market Economies:
Valuing the Factor of Production: Labor, Request for
Comment, 76 FR 9544 (February 18, 2011).
60 See Antidumping Methodologies in
Proceedings Involving Non-Market Economies:
Valuing the Factor of Production: Labor, 76 FR
36092 (June 21, 2011) (‘‘Labor Methodologies’’).
PO 00000
Frm 00013
Fmt 4703
Sfmt 4703
55879
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,
2009, through July 31, 2010.
Manufacturer/exporter
(1) Vinh Hoan 61 .......................
(2) QVD ....................................
(3) Anvifish Co., Ltd. .................
(4) Anvifish JSC ........................
(5) Acomfish .............................
(6) Bien Dong Seafood .............
(7) Binh An ...............................
(8) CASEAMEX ........................
(9) ESS LLC .............................
(10) East Sea Seafoods Joint
Venture Co., Ltd. ...................
(11) Hiep Thanh .......................
(12) South Vina ........................
(13) Vinh Quang .......................
Vietnam-Wide Rate ..................
Weightedaverage
margin
(dollars
per
kilogram)
0.00
0.56
0.56
0.56
0.56
0.56
0.56
0.56
0.56
0.56
0.56
0.56
0.56
2.11
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.62 An interested
party may request a hearing within 30
days of publication of the preliminary
results.63 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.64 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,
61 This rate is applicable to the Vinh Hoan Group
which includes Vinh Hoan, Van Duc, and VD TG.
62 See 19 CFR 351.224(b).
63 See 19 CFR 351.310(c).
64 See 19 CFR 351.309(c)(1)(ii) and 19 CFR
351.309(d).
E:\FR\FM\09SEN1.SGM
09SEN1
55880
Federal Register / Vol. 76, No. 175 / Friday, September 9, 2011 / Notices
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.
mstockstill on DSK4VPTVN1PROD with NOTICES
Assessment Rates
Upon issuance of the final results, the
Department will determine, and CBP
shall assess, antidumping duties on all
appropriate entries covered by this
review. The Department intends to issue
assessment instructions to CBP 15 days
after the publication date of the final
results of this review. In accordance
with 19 CFR 351.212(b)(1), we are
calculating importer- (or customer-)
specific assessment rates for the
merchandise subject to this review.
Where the respondent has reported
reliable entered values, we calculate
importer- (or customer-) specific ad
valorem rates by aggregating the
dumping margins calculated for all U.S.
sales to each importer (or customer) and
dividing this amount by the total
entered value of the sales to each
importer (or customer). Where an
importer- (or customer-) specific ad
valorem rate is greater than de minimis,
we will apply the assessment rate to the
entered value of the importers’/
customers’ entries during the POR,
pursuant to 19 CFR 351.212(b)(1).
Where we do not have entered values
for all U.S. sales to a particular
importer/customer, we calculate a perunit assessment rate by aggregating the
antidumping duties due for all U.S.
sales to that importer (or customer) and
dividing this amount by the total
quantity sold to that importer (or
customer).65 To determine whether the
duty assessment rates are de minimis, in
accordance with the requirement set
forth in 19 CFR 351.106(c)(2), we
calculated importer- (or customer-)
specific ad valorem ratios based on the
estimated entered value. Where an
importer- (or customer-) specific ad
valorem rate is zero or de minimis, we
will instruct CBP to liquidate
appropriate entries without regard to
antidumping duties.66
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
65 See
66 See
19 CFR 351.212(b)(1).
19 CFR 351.106(c)(2).
VerDate Mar<15>2010
16:58 Sep 08, 2011
Jkt 223001
751(a)(2)(C) of the Act: (1) For the
exporters listed above 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.
Notification to Interested Parties
This notice serves as a preliminary
reminder to importers of their
responsibility under 19 CFR
351.402(f)(2) to file a certificate
regarding the reimbursement of
antidumping duties prior to liquidation
of the relevant entries during this POR.
Failure to comply with this requirement
could result in the Secretary’s
presumption that reimbursement of
antidumping duties occurred and the
subsequent assessment of double
antidumping duties.
We are issuing and publishing this
determination in accordance with
sections 751(a)(1) and 777(i)(1) of the
Act.
Dated: August 31, 2011.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import
Administration.
[FR Doc. 2011–23154 Filed 9–8–11; 8:45 am]
BILLING CODE 3510–DS–P
appropriate appointing authority
concerning such matters so as to ensure
the fair and equitable treatment of these
individuals.
This notice lists the membership of
the NIST PRB and supersedes the list
published in Federal Register Vol. 75,
No. 95, page 27708, on May 18, 2010.
Delwin Brockett (C), Chief
Information Officer, National Institute of
Standards & Technology, Gaithersburg,
MD 20899, Appointment Expires: 12/31/
13.
Robert Dimeo (C), Director, NIST
Center for Neutron Research, National
Institute of Standards & Technology,
Gaithersburg, MD 20899, Appointment
Expires: 12/31/12.
Stella Fiotes (C) (alternate), Chief
Facilities Management Officer, National
Institute of Standards & Technology,
Gaithersburg, MD 20899, Appointment
Expires: 12/31/12.
Ellen Herbst (C), Senior Advisor for
Policy and Program Integration, Office
of the Deputy Secretary, Department of
Commerce, Washington, DC 20230,
Appointment Expires: 12/31/2012.
Nancy Potok (NC), Deputy Under
Secretary for Economic Affairs,
Economics and Statistics
Administration, Department of
Commerce, Washington, DC 20230,
Appointment Expires: 12/31/2012.
Sivaraj Shyam-Sunder (C) (alternate),
Director, Engineering Laboratory,
National Institute of Standards &
Technology, Gaithersburg, MD 20899,
Appointment Expires: 12/31/12.
Dated: September 1, 2011.
Willie E. May,
Associate Director for Laboratory Programs.
[FR Doc. 2011–23117 Filed 9–8–11; 8:45 am]
BILLING CODE 3510–13–P
DEPARTMENT OF COMMERCE
United States Patent and Trademark
Office
Recording Assignments
DEPARTMENT OF COMMERCE
National Institute of Standards and
Technology
National Institute of Standards and
Technology; Performance Review
Board Membership
The National Institute of Standards
and Technology Performance Review
Board (NIST PRB) reviews performance
appraisals, agreements, and
recommended actions pertaining to
employees in the Senior Executive
Service and ST–3104 employees. The
Board makes recommendations to the
PO 00000
Frm 00014
Fmt 4703
Sfmt 4703
ACTION:
Proposed collection; comment
request.
The United States Patent and
Trademark Office (USPTO), as part of its
continuing effort to reduce paperwork
and respondent burden, invites the
general public and other Federal
agencies to take this opportunity to
comment on the continuing information
collection, as required by the Paperwork
Reduction Act of 1995, Public Law 104–
13 (44 U.S.C. 3506(c)(2)(A)).
DATES: Written comments must be
submitted on or before November 8,
2011.
SUMMARY:
E:\FR\FM\09SEN1.SGM
09SEN1
]]>Agencies
[Federal Register Volume 76, Number 175 (Friday, September 9, 2011)]
[Notices]
[Pages 55872-55880]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-23154]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
[A-552-801]
Certain Frozen Fish Fillets From the Socialist Republic of
Vietnam: Preliminary Results and Partial Rescission of the Seventh
Antidumping Duty Administrative Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce (``Department'') is conducting an
administrative review of the antidumping duty order on certain frozen
fish fillets from the Socialist Republic of Vietnam (``Vietnam'').\1\
The Department has preliminarily determined that QVD Food Company, Ltd.
(``QVD'') sold subject merchandise at less than normal value (``NV'')
and that Vinh Hoan Corporation (``Vinh Hoan'') \2\ did not sell
merchandise below NV during the period of review (``POR''), August 1,
2009, through July 31, 2010.
---------------------------------------------------------------------------
\1\ See Notice of Antidumping Duty Order: Certain Frozen Fish
Fillets From the Socialist Republic of Vietnam, 68 FR 47909 (August
12, 2003) (``Order'').
\2\ 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 19 CFR 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 9, 2011.
FOR FURTHER INFORMATION CONTACT: Alexis Polovina or Javier Barrientos,
AD/CVD Operations, Office 9, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-
3927 or (202) 482-2243, respectively.
SUPPLEMENTARY INFORMATION:
Case History
On August 2, 2010, the Department published a notice of an
opportunity to request an administrative review of the Order.\3\ The
Department received review requests for 26 companies from Petitioners
\4\ and certain individual companies.
---------------------------------------------------------------------------
\3\ See Antidumping or Countervailing Duty Order, Finding, or
Suspended Investigation; Opportunity To Request Administrative
Review, 75 FR 45094 (August 2, 2010).
\4\ This includes: 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. (``Petitioners'')
---------------------------------------------------------------------------
On September 22, 2010, the Department initiated the August 1, 2009,
through July 31, 2010, antidumping duty administrative review on
certain frozen fish fillets from Vietnam.\5\ The Department initiated
this review with respect to 26 companies.\6\
---------------------------------------------------------------------------
\5\ See Initiation of Antidumping and Countervailing Duty
Administrative Reviews and Requests for Revocation, 75 FR 60076
(September 29, 2010) (``Initiation'').
\6\ This includes: (1) An Giang Fisheries Import and Export
Joint Stock Company (aka Agifish or AnGiang Fisheries Import and
Export) (``Agifish''); (2) Anvifish Co., Ltd.; (3) Anvifish Joint
Stock Company (aka Anvifish JSC); (4) Asia Commerce Fisheries Joint
Stock Company (``Acomfish JSC'') (``Acomfish''); (5) Bien Dong
Seafood Co., Ltd. (``Bien Dong Seafood''); (6) Binh An Seafood Joint
Stock Co. (``Binh An''); (7) Cadovimex II Seafood Import-Export and
Processing Joint Stock Company; (aka Cadovimex II) (``Cadovimex
II''); (8) Cantho Import-Export Seafood Joint Stock Company
(``CASEAMEX''); (9) CUU Long Fish Joint Stock Company (aka CL-Fish)
(``CL Fish''); (10) East Sea Seafoods Limited Liability Company
(formerly known as East Sea Seafoods Joint Venture Co., Ltd.) (ESS
LLC''); (11) East Sea Seafoods Joint Venture Co., Ltd.; (12) East
Sea Seafoods LLC; (13) Hiep Thanh Seafood Joint Stock Co. (``Hiep
Thanh''); (14) International Development & Investment Corporation
(also known as IDI) (``IDI''); (15) Nam Viet Company Limited (aka
NAVICO) (``Nam Viet''); (16) Nam Viet Corporation; (17) NTSF
Seafoods Joint Stock Company (``NTSF''); (18) QVD Food Company, Ltd.
(``QVD''); (19) QVD Dong Thap Food Co., Ltd. (``QVD DT''); (20)
Saigon-Mekong Fishery Co., Ltd. (aka SAMEFICO) (``SAMEFICO''); (21)
Southern Fishery Industries Company, Ltd. (aka South Vina) (``South
Vina''); (22) Thien Ma Seafood Co., Ltd. (``THIMACO''); (23) Thuan
Hung Co., Ltd. (aka THUFICO) (``Thuan Hung''); (24) Vinh Hoan
Corporation (``Vinh Hoan''); (25) Vinh Hoan Company, Ltd.; and (26)
Vinh Quang Fisheries Corporation (``Vinh Quang'').
---------------------------------------------------------------------------
[[Page 55873]]
On January 7, 2011, the Department issued a letter to all
interested parties informing them of its decision to select the two
largest exporters of subject merchandise during the POR, based on U.S.
Customs and Borders Protection (``CBP'') import data, Vinh Hoan and
QVD, (``Respondents''), as mandatory respondents.\7\
---------------------------------------------------------------------------
\7\ 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 January 7, 2011.
---------------------------------------------------------------------------
On January 7, 2011, the Department issued the antidumping
questionnaire. Between January 28, 2011, and July 13, 2011, Vinh Hoan
and QVD submitted responses to the original and supplemental sections
A, C, and D questionnaires.
On March 29, 2011, and May 19, 2011, the Department extended the
deadlines for parties to file surrogate country comments and surrogate
value data.\8\ Between May 10, 2011, and July 29, 2011, the Department
received surrogate country and value comments and rebuttal comments
from interested parties.
---------------------------------------------------------------------------
\8\ See Memorandum to the File, from Alexis Polovina, Case
Analyst, through Matthew Renkey, Acting 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
March 29, 2011, and Memorandum to the File, from Alexis Polovina,
Case Analyst, through Matthew Renkey, Acting Program Manager,
Administrative Review of Certain Frozen Fish Fillets from the
Socialist Republic of Vietnam: Extension Request for Rebuttal
Surrogate Country Selection Comments and Surrogate Value
Submissions, dated May 19, 2011.
---------------------------------------------------------------------------
On April 13, 2011, the Department published in the Federal Register
a notice fully extending the time period for issuing the preliminary
results in these reviews to August 31, 2011.\9\
---------------------------------------------------------------------------
\9\ See Certain Frozen Fish Fillets From the Socialist Republic
of Vietnam: Extension of Time Limit for Preliminary Results of the
Seventh Antidumping Duty Administrative Review, 76 FR 20626 (April
13, 2011).
---------------------------------------------------------------------------
On August 4, 2011, the Department partially rescinded the
administrative review with respect to five companies.\10\ Therefore, 19
companies remain in this administrative review: (1) Anvifish Co., Ltd.;
(2) Anvifish JSC; (3) Acomfish; (4) Bien Dong Seafood; (5) Binh An; (6)
CASEAMEX; (7) CL Fish; (8) ESS LLC; \11\ (9) East Sea Seafoods Joint
Venture Co., Ltd.; (10) Hiep Thanh; (11) IDI; (12) NTSF; (13) QVD; (14)
QVD DT; (15) South Vina; (16) THIMACO; (17) Thuan Hung; (18) Vinh Hoan;
\12\ and (19) Vinh Quang.
---------------------------------------------------------------------------
\10\ These companies include: (1) Agifish; (2) Nam Viet; (3) Nam
Viet Corporation; (4) SAMEFICO; and (5) Cadovimex II. See Certain
Frozen Fish Fillets From the Socialist Republic of Vietnam: Notice
of Partial Rescission of the Seventh Antidumping Duty Administrative
Review, 76 FR 47149 (August 4, 2011).
\11\ We note that the initiation notice contained both ESS LLC
and East Sea Seafoods LLC, however, they appear to be iterations of
the same name.
\12\ We note that the initiation notice contained both Vinh Hoan
Company, Ltd. and Vinh Hoan Corporation. However, they are the same
company. Prior to August 2007, Vinh Hoan Corporation was known as
Vinh Hoan Company, Ltd.
---------------------------------------------------------------------------
Request for Revocation
On April 20, 2011, Vinh Hoan and QVD requested revocation on the
basis that they did not sell subject merchandise for less than NV
consecutively for three years. However, pursuant to 19 CFR 351.222(e),
the request for revocation must be made during the anniversary month.
The anniversary month for this review was August 2010, making these
requests 232 days late. On May 4, 2011, Petitioners submitted comments
urging the Department to reject these requests as untimely. On May 19,
2011, Vinh Hoan and QVD responded to Petitioners' comments. As these
requests were made 232 days after the anniversary month, the Department
is not considering Vinh Hoan and QVD's revocation requests.
Vietnam-Wide Entity
As discussed above, in this administrative review we limited the
selection of respondents to be individually examined using CBP import
data.\13\ 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.\14\ Because some parties for which a
review was requested did not apply for separate rate status, the
Vietnam-Wide entity is considered to be under review in this segment of
the proceeding.
---------------------------------------------------------------------------
\13\ See Respondent Selection Memo.
\14\ See Initiation.
---------------------------------------------------------------------------
Preliminary Partial Rescission of Administrative Review
Pursuant to 19 CFR 351.213(d)(3), the Department has preliminarily
determined that four companies made no shipments of subject merchandise
during the POR of this administrative review, (1) IDI; (2) CL-Fish; (3)
THIMACO; and (4)NTSF. On October 5, 2010, the Department received no-
shipment certifications from IDI, CL-Fish, THIMACO, and NTSF. However,
according to entry statistics obtained from CBP, and placed on the
record, IDI and THIMACO had an entry of subject merchandise during the
POR.
The Department issued no-shipment inquiries to CBP requesting any
information for merchandise manufactured and shipped by either IDI or
THIMACO during the POR. The Department did receive a response from CBP
regarding THIMACO, however, both of IDI and THIMACO's entries have
already been reviewed in the recently completed new shipper
reviews.\15\ We confirmed the entries CBP identified were the same as
those reviewed in the 09-10 NSR. Consequently, we are preliminarily
rescinding the reviews with respect to IDI, CL-Fish, THIMACO, and NTSF.
---------------------------------------------------------------------------
\15\ See Certain Frozen Fish Fillets From the Socialist Republic
of Vietnam: Final Results of the Antidumping Duty New Shipper
Reviews, 76 FR 35403 (June 17, 2011) (``09-10 NSR'').
---------------------------------------------------------------------------
Separate Rates
A designation as a non-market economy (``NME'') remains in effect
until it is revoked by the Department. See section 771(18)(C) of the
Tariff Act of 1930, as amended (``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
[[Page 55874]]
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 this review, 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.\16\
---------------------------------------------------------------------------
\16\ 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, in addition to the two mandatory respondents,
Anvifish Co., Ltd., Anvifish JSC, Acomfish, Bien Dong Seafood, Binh An,
CASEAMEX, ESS LLC, East Sea Seafoods Joint Venture Co., Ltd., Hiep
Thanh, South Vina, and Vinh Quang, submitted complete separate rate
certifications and applications. 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.\17\
---------------------------------------------------------------------------
\17\ 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, in addition to the two mandatory respondents,
Anvifish Co., Ltd., Anvifish JSC, Acomfish, Bien Dong Seafood, Binh An,
CASEAMEX, ESS LLC, East Sea Seafoods Joint Venture Co., Ltd., Hiep
Thanh, South Vina, and Vinh Quang, submitted evidence indicating an
absence of de facto government control over their export activities.
Specifically, this evidence indicates that: (1) Each company sets its
own export prices independent of the government and without the
approval of a government authority; (2) each company retains the
proceeds from its sales and makes independent decisions regarding the
disposition of profits or financing of losses; (3) each company has a
general manager, branch manager or division manager with the authority
to negotiate and bind the company in an agreement; (4) the general
managers are selected by the board of directors or company employees,
and the general managers appoint the deputy managers and the manager of
each department; and (5) there is no restriction on any of the
companies' use of export revenues. Therefore, the Department
preliminarily finds that in this review, Vinh Hoan, QVD, Anvifish Co.,
Ltd., Anvifish JSC, Acomfish, Bien Dong Seafood, Binh An, CASEAMEX, ESS
LLC, East Sea Seafoods Joint Venture Co., Ltd., Hiep Thanh, South Vina,
and Vinh Quang, have established that they qualify for separate rates
under the criteria established by Silicon Carbide and Sparklers.
Rate for Non-Selected Companies
In this review there are 11 companies that are not presently
selected for individual examination.\18\ 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 when
the Department limited its examination in an administrative review
pursuant to section 777A(c)(2) of the Act. Generally we have looked to
section 735(c)(5) of the Act, which provides instructions for
calculating the all-others rate in an investigation, for guidance when
calculating the rate for respondents we did not examine in an
administrative review. Section 735(c)(5)(A) of the Act articulates a
preference that we are not to calculate an all-others rate using any
zero or de minimis margins or any margins based entirely on facts
available. Accordingly, the Department's usual practice has been to
average the rates for the selected companies, excluding zero, de
minimis and rates based entirely on facts available.\19\ Section
735(c)(5)(B) of the Act also provides that, where all margins are zero,
de minimis, or based entirely on facts available, we may use ``any
reasonable method'' for assigning the rate to non-selected respondents,
including ``averaging the estimated weighted-average dumping margins
determined for the exporters and producers individually investigated.''
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\18\ These companies include: (1) Anvifish Co., Ltd.; (2)
Anvifish JSC; (3) Acomfish; (4) Bien Dong Seafood (5) Binh An; (6)
CASEAMEX (7) ESS LLC; (8) East Sea Seafoods Joint Venture Co., Ltd.;
(9) Hiep Thanh; (10) South Vina; and (11) Vinh Quang.
\19\ See Ball Bearings and Parts Thereof from France, Germany,
Italy, Japan, and the United Kingdom: Final Results of Antidumping
Duty Administrative Reviews and Rescission of Review in Part, 73 FR
52823, 52824 (September 11, 2008) and accompanying Issues and
Decision Memorandum at Comment 16.
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For this administrative review, the Department has calculated
positive margins for one mandatory respondent, QVD. 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 one of the mandatory
respondents, QVD. The rate established for the separate rate
respondents is a per-unit rate of $0.56 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 the order is frozen fish fillets, including
regular, shank, and strip fillets and portions thereof, whether or not
breaded or marinated, of the species Pangasius Bocourti, Pangasius
Hypophthalmus (also known as Pangasius Pangasius), and Pangasius
Micronemus. Frozen fish fillets are lengthwise cuts of whole fish. The
fillet products covered by the scope include boneless fillets with the
belly flap intact (``regular'' fillets), boneless fillets with the
belly flap removed (``shank'' fillets), boneless shank fillets cut into
strips (``fillet strips/finger''), which include fillets cut into
strips, chunks, blocks, skewers, or any other shape. Specifically
excluded from the scope are frozen whole fish (whether or not dressed),
frozen steaks, and frozen belly-flap nuggets. Frozen whole dressed fish
are deheaded, skinned, and eviscerated. Steaks are bone-in, cross-
[[Page 55875]]
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'').\20\ The
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.
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\20\ Until July 1, 2004, these products were classifiable under
tariff article codes 0304.20.60.30 (Frozen Catfish Fillets),
0304.20.60.96 (Frozen Fish Fillets, NESOI), 0304.20.60.43 (Frozen
Freshwater Fish Fillets) and 0304.20.60.57 (Frozen Sole Fillets) of
the HTSUS. Until February 1, 2007, these products were classifiable
under tariff article code 0304.20.60.33 (Frozen Fish Fillets of the
species Pangasius including basa and tra) of the HTSUS.
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Non-Market Economy Country Status
In every case conducted by the Department involving Vietnam,
Vietnam has been treated as an NME country. In accordance with section
771(18)(C)(i) of the Act, any determination that a foreign country is
an NME country shall remain in effect until revoked by the
administering authority.\21\ 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.
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\21\ 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'').
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Surrogate Country and Surrogate Values
On February 1, 2011, 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 May 10, 2011, and July 29, 2011, Vinh Hoan, QVD,
the Vietnam Association of Seafood Exporters and Producers (``VASEP''),
and 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 (``ME'') 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 ME countries that are: (1)
At a level of economic development comparable to that of the NME
country; and (2) significant producers of comparable merchandise.
Regarding economic comparability, Respondents argue that the
Philippines is not economically comparable to Vietnam. However, as
explained in our list of surrogate countries, the Department considers
Bangladesh, the Philippines, Indonesia, India, Sri Lanka, and Pakistan
all comparable to Vietnam in terms of economic development.\22\ Section
773(c)(4)(A) of the Act is silent with respect to how the Department
may determine that a country is economically comparable to the NME
country. As such, the Department's long standing practice has been to
identify those countries which are at a level of economic development
similar to Vietnam in terms of gross national income (``GNI'') data
available in the World Development Report provided by the World
Bank.\23\ In this case, the GNI available are based on data published
in 2010. The GNI levels for the list of potential surrogate countries
ranged from $520 to $2,010.\24\ The Department is satisfied that they
are equally comparable in terms of economic development and serve as an
adequate group to consider when gathering surrogate value data.
Further, providing parties with a range of countries with varying GNIs
is reasonable given that any alternative would require a complicated
analysis of factors affecting the relative GNI differences between
Vietnam and other countries which is not required by the statute. In
contrast, by identifying countries that are economically comparable to
Vietnam based on GNI, the Department provides parties with a
predictable practice which is also reasonable and consistent with the
statutory requirements. Identifying potential surrogate countries based
on GNI data has been affirmed by the Court of International Trade
(``CIT'').\25\
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\22\ See Memorandum from Carole Showers, Director, Office of
Policy, to Alex Villanueva, Program Manager, AD/CVD Enforcement,
Office 9: Request for a list of Surrogate Countries for an
Administrative Review of the Antidumping Duty Order on Certain
Frozen Fish Fillets (``Fish Fillets'') from the Socialist Republic
of Vietnam, dated January 31, 2011 (``Surrogate Country List'').
\23\ See Pure Magnesium from the People's Republic of China:
Final Results of the 2008-2009 Antidumping Duty Administrative
Review of the Antidumping Duty Order, 75 FR 80791 (December 23,
2010) and accompanying Issues and Decision Memorandum at Comment 4.
\24\ See Surrogate Country List.
\25\ See Fujian Lianfu Forestry Co., Ltd. v. United States, 638
F. Supp. 2d 1325 (Ct. Int'l Trade 2009).
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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.\26\ 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 2008 export data from the United
Nations Food and Agriculture Organization,\27\ Bangladesh, the
Philippines, Indonesia, India, Sri Lanka, and Pakistan are exporters of
frozen fish fillets and, thus, significant producers.
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\26\ 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).
\27\ See Memorandum to the File through Matthew Renkey, Acting
Program Manager, Office 9, from Alexis Polovina, Case Analyst, dated
August 31, 2011 (``Surrogate Value Memo'') at Attachment I.
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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.\28\ In this case, the whole fish input is
the most significant input because it accounts for the largest
percentage of 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 from Sri Lanka or 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 Bangladesh, the Philippines, Indonesia,
and India.
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\28\ See Department Policy Bulletin No. 04.1: Non-Market Economy
Surrogate Country Selection Process (March 1, 2004).
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[[Page 55876]]
Bangladesh
VASEP placed the Bangladeshi Department of Agriculture Marketing,
Ministry of Agriculture, pangas price data (``DAM data'') on the
record.\29\ The Department issued a letter to the Bangladeshi
Department of Agriculture Marketing, requesting among other things,
more information regarding the publicly availability of the DAM
data.\30\ We have yet to receive a response from the Bangladeshi
Department of Agriculture Marketing.
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\29\ See VASEP's First Surrogate Value Submission, dated May 10,
2011, at Exhibit 13A.
\30\ See Letter to Fahmida Akhter, Deputy Director Department of
Department of Agricultural Marketing from Matthew Renkey, Acting
Program Manager: Questions for the Bangladeshi Department of
Agricultural Marketing Regarding National Wholesale Price Data,
dated June 23, 2011.
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Philippines
Petitioners placed the Fisheries Statistics of the Philippines,
2007-2009, published by the Philippines Bureau of Agricultural
Statistics, Department of Agriculture (``Fisheries Statistics''), on
the record.\31\ The Department issued a letter to the Philippines
Bureau of Agricultural Statistics (``BAS''), requesting among other
things, more information regarding the publicly availability of the
Fisheries Statistics.\32\ We received a response from the Philippines
BAS, which we placed on the record.\33\
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\31\ See Petitioners' Surrogate Country Comments and Submission
of Proposed Factor Values, dated May 10, 2011, at Exhibit 9-A.
\32\ See Letter to Romeo S. Recide, Director, Bureau of
Agriculture Statistics, from Matthew Renkey, Acting Program Manager:
Questions for the Philippine Bureau of Agriculture Statistics
Regarding Price Data in the Fisheries Statistics of the Philippines,
dated June 23, 2011; and Letter to Fahmida Akhter, Deputy Director
Department of Department of Agricultural Marketing from Matthew
Renkey, Acting Program Manager: Questions for the Bangladeshi
Department of Agricultural Marketing Regarding National Wholesale
Price Data, dated June 23, 2011.
\33\ See Memorandum to the File, from Javier Barrientos, Senior
Case Analyst, Regarding Response to Questions for the Philippine
Bureau of Agriculture Statistics Regarding Price Data in the
Fisheries Statistics of the Philippines, dated July 15, 2011.
---------------------------------------------------------------------------
Indonesia
The Department placed Indonesian price and quantity data from the
United Nations Food and Agriculture Organization's Fisheries Global
Information System (``FIGIS data'').\34\
---------------------------------------------------------------------------
\34\ See Memorandum to the File, from Alexis Polovina, Case
Analyst, dated July 15, 2011.
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India
VASEP placed the Present Status of the Pangasius, Pangasianodon-
Hypophthalmus Farming in Andhra Pradesh, India (``Pangasius Study''),
on the record.\35\
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\35\ See VASEP's First Surrogate Value Submission, dated May 10,
2011, at Exhibit 32A.
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Analysis
When evaluating surrogate value data, the Department considers
several factors including whether the surrogate value is publicly
available, contemporaneous with the POR, represents a broad market
average, from an approved surrogate country, tax and duty-exclusive,
and specific to the input. There is no hierarchy; it is the
Department's practice to carefully consider the available evidence in
light of the particular facts of each industry when undertaking its
analysis.
First, we note that the Pangasius Study regarding India is a
``first attempt'' \36\ study undertaken by a professor with estimated
production quantities. When compared to the other sources on the
record, we find that the Pangasius Study is not an appropriate source
because there is uncertainty regarding public availability and broad
market average. There is no information on how the study was obtained,
or on the data collection methods, making it difficult to determine
public availability or if the study represents a broad market
average.\37\ Furthermore, the study appears to be based on estimates
for one Indian state.\38\ Therefore, we find that the Pangasius Study
is not the most suitable source on the record for purposes of these
preliminary results.
---------------------------------------------------------------------------
\36\ See Pangasius Study at 1.
\37\ Other than stating the report was compiled over 15 days
based on farmer interviews and farm visits, there is no information
regarding the data collection methods (i.e., how the farms were
selected, the number of farms selected, and who collected the data).
\38\ See Pangasius Study at 28.
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We note that both Petitioners and Respondents claim that both
Bangladesh and the Philippines' Pangasius industries receive government
assistance, in the forms of techno-farms and education, and should
therefore, be disregarded as surrogate countries. However, the
Department's practice is to exclude data from consideration only when
the record evidence demonstrates that the alleged subsidy programs
constituted countervailable subsidies.\39\ In this case, as we have
found in prior reviews, there is no record evidence that the subsidies
alleged by Petitioners and Respondents constitute countervailing
subsidies.
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\39\ See Freshwater Crawfish Tail Meat from the People's
Republic of China: Notice of Final Results And Rescission, In Part,
of 2004/2005 Antidumping Duty Administrative and New Shipper
Reviews, 72 FR 19174 (April 17, 2007) and accompanying Issues and
Decision Memorandum at Comment 1, and Silicon Metal and accompanying
Issues and Decision Memorandum at Comment 2.
---------------------------------------------------------------------------
With respect to the DAM data, Fisheries Statistics, and the FIGIS
data, we note that all are from approved surrogate countries,
sufficiently specific to the input in question, tax and duty exclusive,
and contemporaneous with the POR.
As noted above, Petitioners have raised concerns regarding the
public availability of the DAM data. The Department issued letters to
both the Bangladeshi Department of Agriculture Marketing and the
Philippines Bureau of Agricultural Statistics, requesting among other
things, more information regarding the publicly availability of both
the DAM data and the Fisheries Statistics.\40\ While we received a
response from the Philippines Bureau of Agricultural Statistics, we
have yet to receive a response from the Bangladeshi Department of
Agriculture Marketing, and are therefore, at this time, unable to
independently ascertain the public availability of the DAM data. While
the DAM data are not published, the record contains a letter from the
Deputy Director of DAM stating that the data ``* * * can be provided to
any member of the public upon request, free of cost.'' \41\ The record,
however, also contains an affidavit from a Barrister at Law in
Bangladesh, retained by Petitioners the contents of which raise
concerns regarding the public availability of this data. The affiant
stated while meeting with the Director and Assistant Director of DAM,
the DAM officials explained that ``* * * DAM does not, as a matter of
course, provide the pangas wholesale price data to members of the
public * * *'' \42\ Regarding the DAM data on the record, according to
the affidavit submitted by Petitioners, the DAM officials explained
that the Deputy Director ``must have been instructed to do so be a
superior
[[Page 55877]]
official as it is not the DAM's practice to issue such letters to any
member of the public.'' \43\
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\40\ See Letter to Romeo S. Recide, Director, Bureau of
Agriculture Statistics, from Matthew Renkey, Acting Program Manager:
Questions for the Philippine Bureau of Agriculture Statistics
Regarding Price Data in the Fisheries Statistics of the Philippines,
dated June 23, 2011; and Letter to Fahmida Akhter, Deputy Director,
Department of Agricultural Marketing from Matthew Renkey, Acting
Program Manager: Questions for the Bangladeshi Department of
Agricultural Marketing Regarding National Wholesale Price Data,
dated June 23, 2011.
\41\ See VASEP's Letter to the Secretary of Commerce, Regarding
VASEP's First Surrogate Value Submission: 7th Administrative Review
of Frozen Fish Fillets from the Socialist Republic of Vietnam, at
Exhibits 13A and 13B, dated May 10, 2011.
\42\ See Petitioner's Letter to the Secretary of Commerce,
Regarding Seventh Administrative Review of Certain Frozen Fish
Fillets from Vietnam: Submission of Additional Rebuttal Information
on DAM Price Data, at Exhibit 1, dated July 25, 2011.
\43\ Id.
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As a result of the uncertainty regarding public availability of the
DAM data, we find that Bangladesh does not provide the best available
information with respect to valuation of whole live fish for purposes
of these preliminary results. Therefore, the FIGIS data and the
Fisheries Statistics remain. When considering specificity to the input,
as we have found in prior reviews, the Fisheries Statistics are
specific to the species, pangasius hypophthalmus.\44\ As noted above,
the FIGIS data indicate specificity only to the genus level, Pangasius;
however, the record also contains a 2005 World Wildlife Fund article
indicating that Indonesia is the second largest producer of pangasius
behind Vietnam, and that the majority of farmed pangasius is that of
Pangasianodon hypothalamus. With respect to broad market average, the
FIGIS data indicate that the Indonesian Pangasius industry has grown in
size every year since 2006, to 109,685 MT, while the survey size of the
Fisheries Statistics now represents only 34.34 MT for 2009. While we
note the FIGIS data only contain one data point for the whole country,
this one data point represents a significant volume. Additionally, the
observations the Department made in the previous reviews,\45\ with
respect to the Fisheries Statistics, and for that matter the DAM data,
still remain, and we note these observations concerning the FIGIS data
do not exist.
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\44\ See 6th AR and 09-10 NSR.
\45\ See 6th AR at 9-14, and 09-10 NSR at 10-15.
---------------------------------------------------------------------------
Based on the analysis above, we find that the FIGIS data represent
a more reliable broad market average for purposes of valuing whole live
fish. Therefore, for the preliminary results, the Department will
select Indonesia as the primary surrogate country. We recognize, with
respect to determining surrogate financial ratios, that we have no
useable financial statements on the record at this time with respect to
Indonesia. As Bangladesh satisfies the remaining criteria for selection
of surrogate country and because the record contains numerous sources
from Bangladesh, we find it a suitable secondary surrogate country.
Thus, we intend to rely on financial statements from Bangladesh, the
secondary surrogate country, for purposes of these preliminary results.
The record contains three financial statements from Bangladesh,
including two of which are from vertically integrated companies,
matching the production experience of the mandatory respondents.
We hereby invite parties to submit additional comments to 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 or director of an organization and such
organization;
(C) Partners;
(D) Employer and employee;
(E) Any person directly or indirectly owning, controlling, or
holding with power to vote, 5 percent or more of the outstanding voting
stock or shares of any organization and such organization;
(F) Two or more persons directly or indirectly controlling,
controlled by, or under common control with, any person;
(G) Any person who controls any other person and such other person.
Additionally, section 771(33) of the Act stipulates that: ``For
purposes of this paragraph, a person shall be considered to control
another person if the person is legally or operationally in a position
to exercise restraint 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.\46\
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\46\ See 19 CFR 351.401(f)(1) and (2).
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Vinh Hoan
In the final results of the sixth antidumping duty administrative
review, the Department determined that Vinh Hoan was affiliated with
Vinh Hoan Feed 1 Company (``Vinh Hoan Feed''), Vinh Hoan USA, Van Duc
Food Export Joint Company (``Van Duc''), and Van Duc Tien Giang (``VD
TG''). The Department also determined that Vinh Hoan, Van Duc, and VD
TG should be treated as a single entity. See 6th AR Final.\47\ 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.
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\47\ See Certain Frozen Fish Fillets From the Socialist Republic
of Vietnam: Final Results of the Sixth Antidumping Duty
Administrative Review and Sixth New Shipper Review, 76 FR 15941
(March 22, 2011).
---------------------------------------------------------------------------
Based on evidence submitted by Vinh Hoan in this administrative
review, the Department continues to find that Vinh Hoan is affiliated
with Vinh Hoan Feed, Vinh Hoan USA, Van Duc, and VD TG, pursuant to
section 771(33) of the Act.\48\ The Department also preliminarily finds
that Vinh Hoan, Van Duc, and VD TG, should be treated as a single
entity for purposes of this administrative review.\49\ 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 (i.e., freezing
machines) in order to produce comparable merchandise.\50\ Therefore,
pursuant to 19 CFR 351.401(f)(1) and (2), the Department preliminarily
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.
---------------------------------------------------------------------------
\48\ See Vinh Hoan's Section A Response at 16-18, dated January
28, 2011.
\49\ See 19 CFR 351.401(f)(1) and (2).
\50\ See Vinh Hoan's Supplemental section A Response at 3, dated
March 17, 2011.
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QVD
In the final results of the fifth antidumping duty administrative
review, the Department determined that QVD and QVD USA are affiliated
pursuant to sections 771(33)(A), (B), (E), (F), and (G) of the Act.\51\
The Department also determined that QVD, QVD DT, and Thuan Hung should
be collapsed and treated as a single entity.\52\ The Department
preliminarily finds that QVD, QVD DT, and Thuan Hung are all under
common control of the principal owner allowing for significant
potential for price manipulation or production. Based on evidence
submitted by QVD in this administrative review, the Department
continues to find that QVD, QVD DT,
[[Page 55878]]
and Thuan Hung should be collapsed and treated as a single entity and
that QVD and QVD USA are affiliated pursuant to sections 771(33)(A),
(B), (E), (F), and (G) of the Act. See QVD's Section A at 1.
---------------------------------------------------------------------------
\51\ 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 Final'').
\52\ Id.
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Fair Value Comparisons
To determine whether sales of the subject merchandise made by Vinh
Hoan and QVD to the United States were at prices below NV, we compared
each company's export price (``EP'') or constructed export price
(``CEP''), where appropriate, to NV, as described below.
U.S. Price
A. Export Price
For Vinh Hoan's EP sales, we used the EP methodology, pursuant to
section 772(a) of the Act, because the first sale to an unaffiliated
purchaser was made prior to importation. To calculate EP, we 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.
B. Constructed Export Price
For Vinh Hoan's and QVD's CEP sales, we used the CEP methodology
when the first sale to an unaffiliated purchaser occurred after
importation of the merchandise into the United States. To calculate
CEP, 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.
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 and QVD pursuant to sections 773(c)(3) and (4) of the Act and
19 CFR 351.408(c).
Factor Valuation Methodology
In accordance with 19 CFR 351.408(c)(1), the Department will
normally use publicly available information to value the FOPs, but when
a producer sources an input from a ME country and pays for it in an ME
currency, the Department may value the factor using the actual price
paid for the input. During the POR, Vinh Hoan reported that it
purchased certain inputs, and international freight, from an ME
suppliers and paid for the inputs in a ME currency.\53\ During the POR,
QVD reported that it incurred international freight from a ME carrier
and paid it a market economy currency. See QVD's Supplemental Section C
at Exhibit 4, dated April 17, 2011. The Department has a rebuttable
presumption that ME input prices are the best available information for
valuing an input when the total volume of the input purchased from all
ME sources during the period of investigation or review exceeds 33
percent of the total volume of the input purchased from all sources
during the period. See Antidumping Methodologies: Market Economy
Inputs, Expected Non-Market Economy Wages, Duty Drawback; and Request
for Comments, 71 FR 61716, 61717-18 (October 19, 2006) (``Antidumping
Methodologies'').
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\53\ See Vinh Hoan's Section D, dated February 23, 2011, and
Supplemental Section D, dated May 9, 2011.
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In this case, unless case-specific facts provide adequate grounds
to rebut the Department's presumption, the Department will use the
weighted-average ME purchase price to value the input. Alternatively,
when the volume of an NME firm's purchases of an input from ME
suppliers during the period is below 33 percent of its total volume of
purchases of the input during the period, but where these purchases are
otherwise valid and there is no reason to disregard the prices, the
Department will weight-average the ME purchase price with an
appropriate SV according to their respective shares of the total volume
of purchases, unless case-specific facts provide adequate grounds to
rebut the presumption.\54\ When a firm has made ME input purchases that
may have been dumped or subsidized, are not bona fide, or are otherwise
not acceptable for use in a dumping calculation, the Department will
exclude them from the numerator of the ratio to ensure a fair
determination of whether valid ME purchases meet the 33 percent
threshold.\55\
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\54\ See Antidumping Methodologies.
\55\ See Antidumping Methodologies.
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As the basis for NV, Vinh Hoan and QVD provided FOPs used in each
of the stages for producing frozen fish fillets. The Department's
general policy, consistent with section 773(c)(1) 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 and QVD's
reported per-unit factor quantities using publicly available
Indonesian, Bangladeshi, and Philippine surrogate values. Indonesia is
our primary surrogate country source from which to obtain data to value
inputs, and when data were not available from Indonesia, we used
Bangladeshi, and Philippine, 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.\56\ In this regard, the Department
has previously found that it is appropriate to disregard such prices
from India, Indonesia, South Korea and Thailand
[[Page 55879]]
because we have determined that these countries maintain broadly
available, non-industry specific export subsidies.\57\ 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.
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\56\ 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.
\57\ 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
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 4; 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 17, 19-20; and
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 23.
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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.
Labor
Section 733(c) of the Act, provides that the Department will value
the FOPs in NME cases using the best available information regarding
the value of such factors in a ME country or countries considered to be
appropriate by the administering authority. The Act requires that when
valuing FOPs, the Department utilize, to the extent possible, the
prices or costs of FOPs in one or more ME countries that are (1) At a
comparable level of economic development and (2) significant producers
of comparable merchandise.\58\
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\58\ See section 773(c)(4) of the Act.
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Previously, the Department used regression-based wages that
captured the worldwide relationship between per capita GNI and hourly
manufacturing wages, pursuant to 19 CFR 351.408(c)(3), to value the
respondent's cost of labor. However, on May 14, 2010, the Court of
Appeals for the Federal Circuit (``CAFC''), in Dorbest Ltd. v. United
States, 604 F.3d 1363, 1372 (Fed. Cir. 2010) (``Dorbest''), invalidated
19 CFR 351.408(c)(3). As a consequence of the CAFC's ruling in Dorbest,
the Department no longer relies on the regression-based wage rate
methodology described in its regulations. On February 18, 2011, the
Department published in the Federal Register a request for public
comment on the interim methodology, and the data sources.\59\
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\59\ See Antidumping Methodologies in Proceedings Involving Non-
Market Economies: Valuing the Factor of Production: Labor, Request
for Comment, 76 FR 9544 (February 18, 2011).
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On June 21, 2011, the Department revised its methodology for
valuing the labor input in NME antidumping proceedings.\60\ In Labor
Methodologies, the Department determined that the best methodology to
value the labor input is to use industry-specific labor rates from the
primary surrogate country. Additionally, the Department determined that
the best data source for industry-specific labor rates is Chapter 6A:
Labor Cost in Manufacturing, from the International Labor Organization
(``ILO'') Yearbook of Labor Statistics (``Yearbook'').
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\60\ See Antidumping Methodologies in Proceedings Involving Non-
Market Economies: Valuing the Factor of Production: Labor, 76 FR
36092 (June 21, 2011) (``Labor Methodologies'').
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In this review, however, the Department has selected Indonesia as
the surrogate country. Because Indonesia does not report labor data to
the ILO under Chapter 6A, for these preliminary results, we are unable
to use ILO's Chapter 6A data to value the Respondents' labor wage and
instead will use industry-specific wage rate using earnings or wage
data reported under ILO's Chapter 5B. The Department finds the two-
digit description under ISIC-Revision 3 (``Manufacture of Food Products
and Beverages'') to be the best available information on the record
because it is specific to the industry being examined, and is therefore
derived from industries that produce comparable merchandise.
Accordingly, relying on Chapter 5B of the Yearbook, the Department
calculated the labor input using labor data reported by Indonesia to
the ILO under Sub-Classification 15 of the ISIC-Revision 3 standard, in
accordance with Section 773(c)(4) of the Act. For these preliminary
results, the calculated wage rate is 4,298.06 Indonesian Rupiahs per
hour. A more detailed description of the wage rate calculation
methodology is provided in 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, 2009, through July 31, 2010.
------------------------------------------------------------------------
Weighted-
average
margin
Manufacturer/exporter (dollars
per
kilogram)
------------------------------------------------------------------------
(1) Vinh Hoan \61\......................................... 0.00
(2) QVD.................................................... 0.56
(3) Anvifish Co., Ltd...................................... 0.56
(4) Anvifish JSC........................................... 0.56
(5) Acomfish............................................... 0.56
(6) Bien Dong Seafood...................................... 0.56
(7) Binh An................................................ 0.56
(8) CASEAMEX............................................... 0.56
(9) ESS LLC................................................ 0.56
(10) East Sea Seafoods Joint Venture Co., Ltd.............. 0.56
(11) Hiep Thanh............................................ 0.56
(12) South Vina............................................ 0.56
(13) Vinh Quang............................................ 0.56
Vietnam-Wide Rate.......................................... 2.11
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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.\62\ An
interested party may request a hearing within 30 days of publication of
the preliminary results.\63\ 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.\64\ 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,
[[Page 55880]]
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.
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