Certain Frozen Fish Fillets From the Socialist Republic of Vietnam: Preliminary Results of the New Shipper Review, 77485-77490 [2011-31934]

Agencies

• DEPARTMENT OF COMMERCE
• International Trade Administration

[Federal Register Volume 76, Number 239 (Tuesday, December 13, 2011)]
[Notices]
[Pages 77485-77490]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-31934]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-552-801]


Certain Frozen Fish Fillets From the Socialist Republic of 
Vietnam: Preliminary Results of the New Shipper Review

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.
SUMMARY: The Department of Commerce (``Department'') is conducting a 
new shipper review (``NSR'') of the antidumping duty order on certain 
frozen fish fillets from the Socialist Republic of Vietnam 
(``Vietnam''). The Department preliminarily determines that Thuan An 
Production Trading & Services Co., Ltd. (``TAFISHCO'') did not sell 
subject merchandise at less than normal value (``NV''). Upon completion 
of the final results of this NSR, the Department will instruct U.S. 
Customs and Border Protection (``CBP'') to assess antidumping duties on 
entries of subject merchandise during the period of review (``POR''), 
August 1, 2010, through January 31, 2011, for which the importer-
specific assessment rates are above de minimis.

DATES: Effective Date: December 13, 2011.

FOR FURTHER INFORMATION CONTACT: Emeka Chukwudebe, 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) 482-0219.

SUPPLEMENTARY INFORMATION: 

Case History

    On August 12, 2003, the Department published in the Federal 
Register the antidumping duty order on certain frozen fish fillets from 
Vietnam.\1\ On February 28, 2011, pursuant to section 751(a)(2)(B)(i) 
of the Tariff Act of 1930, as amended (``Act''), the Department 
received a properly filed NSR request from TAFISHCO. On March 31, 2011, 
the Department published in the Federal Register a notice of initiation 
for the NSR of certain frozen fish fillets from Vietnam covering the 
period August 1, 2010, through January 31, 2011.\2\ Between April 5, 
2011, and October 5, 2011, TAFISHCO filed responses to the Department's 
original and supplemental antidumping duty questionnaires. On June 23, 
2011, the Department extended the deadline for parties to submit 
surrogate country selection comments and surrogate value (``SV'') 
data.\3\ On August 5, 2011, the Department extended the deadline for 
parties to file rebuttal surrogate country and SV comments.\4\ Between 
July 22, 2011, and August 12, 2011, the Department received surrogate 
country and SV comments from interested parties. On September 27, 2011, 
the Department published a notice extending the time period for issuing 
the preliminary results of this NSR to November 4, 2011.\5\ On November 
11, 2011, the Department published a second notice extending the time 
period for issuing the preliminary results of this NSR to December 5, 
2011.
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    \1\ See Notice of Antidumping Duty Order: Certain Frozen Fish 
Fillets from the Socialist Republic of Vietnam, 68 FR 47909 (August 
12, 2003).
    \2\ See Certain Frozen Fish Fillets From the Socialist Republic 
of Vietnam: Initiation of Antidumping Duty New Shipper Review, 76 FR 
17837 (March 31, 2011).
    \3\ See Memorandum for All Interested Parties, through Matthew 
Renkey, Acting Program Manager Import Administration, from Emeka 
Chukwudebe, Case Analyst, Import Administration, Re: Antidumping 
Duty New Shipper Review of Certain Frozen Fish Fillets from the 
Socialist Republic of Vietnam: Extension of Time Request to Submit 
Surrogate Values and Surrogate Country Selection Comments, dated 
June 23, 2011.
    \4\ See Memorandum for All Interested Parties, from Emeka 
Chukwudebe, Case Analyst, Import Administration, Re: Antidumping 
Duty New Shipper Review of Certain Frozen Fish Fillets from the 
Socialist Republic of Vietnam: Extension of Time to Submit Rebuttal 
Surrogate Country and Surrogate Value Comments, dated August 5, 
2011.
    \5\ See Certain Frozen Fish Fillets from the Socialist Republic 
of Vietnam: Extension of Time Limit for Preliminary Results of the 
New Shipper Review, 76 FR 59658 (September 27, 2011).
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Period of Review

    The POR is August 1, 2010, through January 31, 2011.

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), and Pangasius Micronemus. 
Frozen fish fillets are lengthwise cuts of whole fish. The fillet 
products covered by the scope include boneless fillets with the belly 
flap intact (``regular'' fillets), boneless fillets with the belly flap 
removed (``shank'' fillets), boneless shank fillets cut into strips 
(``fillet strips/finger''), which include fillets cut into strips, 
chunks, blocks, skewers, or any other shape. Specifically excluded from 
the scope are frozen whole fish (whether or not dressed), frozen 
steaks, and frozen belly-flap nuggets. Frozen whole dressed fish are 
deheaded, skinned, and eviscerated. Steaks are bone-in, cross-section 
cuts of dressed fish. Nuggets are the belly-flaps. The subject 
merchandise will be hereinafter referred to as frozen ``basa'' and 
``tra'' fillets, which are the Vietnamese common names for these 
species of fish. These products are classifiable under tariff article 
codes 1604.19.4000, 1604.19.5000, 0305.59.4000, 0304.29.6033 (Frozen 
Fish Fillets of the species Pangasius including basa and tra) of the 
Harmonized Tariff Schedule of the United States (``HTSUS'').\6\ 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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    \6\ 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 a non-market economy (``NME'') country. In 
accordance with section 771(18)(C)(i) of the Act, any determination 
that a foreign country is an NME country shall remain in effect until 
revoked by the administering authority. See Certain Frozen Fish Fillets 
From the Socialist Republic of Vietnam: Final Results of the 
Antidumping Duty Administrative Review and New Shipper Reviews, 74 FR 
11349 (March 17, 2009). None of the

[[Page 77486]]

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.

Separate Rate Determination

    In proceedings involving NME countries, there is a rebuttable 
presumption that all companies within the country are subject to 
government control and, thus, should be assessed a single antidumping 
duty rate. It is the Department's standard policy to assign all 
exporters of the merchandise subject to review in NME countries a 
single rate unless an exporter can affirmatively demonstrate an absence 
of government control, both in law (de jure) and in fact (de facto), 
with respect to exports. To establish whether a company is sufficiently 
independent to be entitled to a separate, company-specific rate, the 
Department analyzes each exporting entity in an NME country under the 
test established in the Final Determination of Sales at Less than Fair 
Value: Sparklers from the People's Republic of China, 56 FR 20588 (May 
6, 1991) (``Sparklers''), as amplified by the Notice of Final 
Determination of Sales at Less Than Fair Value: Silicon Carbide from 
the People's Republic of China, 59 FR 22585 (May 2, 1994) (``Silicon 
Carbide'').

A. Absence of De Jure Control

    The Department considers the following de jure criteria in 
determining whether an individual company may be granted a separate 
rate: (1) An absence of restrictive stipulations associated with an 
individual exporter's business and export licenses; and (2) any 
legislative enactments decentralizing control of companies.
    In this review, TAFISHCO submitted a complete response to the 
separate rates section of the Department's NME questionnaire. The 
evidence submitted by TAFISHCO includes government laws and regulations 
on corporate ownership, business licenses, and narrative information 
regarding each company's operations and selection of management. The 
evidence provided by TAFISHCO supports a finding of a de jure absence 
of government control over each of its export activities. We have no 
information in this proceeding that would cause us to reconsider this 
determination. Thus, we believe that the evidence on the record 
supports a preliminary finding of an absence of de jure government 
control based on: (1) An absence of restrictive stipulations associated 
with the exporter's business license; and (2) the legal authority on 
the record decentralizing control over the respondent.

B. Absence of De Facto Control

    The absence of de facto government control over exports is based on 
whether the respondent: (1) Sets its own export prices independent of 
the government and other exporters; (2) retains the proceeds from its 
export sales and makes independent decisions regarding the disposition 
of profits or financing of losses; (3) has the authority to negotiate 
and sign contracts and other agreements; and (4) has autonomy from the 
government regarding the selection of management. See Silicon Carbide, 
59 FR at 22587; Sparklers, 56 FR at 20589; see also Notice of Final 
Determination of Sales at Less Than Fair Value: Furfuryl Alcohol From 
the People's Republic of China, 60 FR 22544, 22545 (May 8, 1995).
    In its questionnaire response, TAFISHCO submitted evidence 
indicating an absence of de facto government control over its export 
activities. Specifically, this evidence indicates that: (1) TAFISHCO 
sets its own export prices independent of the government and without 
the approval of a government authority; (2) TAFISHCO retains the 
proceeds from its sales and makes independent decisions regarding the 
disposition of profits or financing of losses; (3) TAFISHCO's sales 
manager, vice director, and managing director are authorized to 
negotiate and bind the company in an agreement; (4) the board of 
directors select senior management and the factory and operations 
managers appoint the other management team on a less formal basis; and 
(5) there is no restriction on any of the company's use of export 
revenues. Therefore, the Department preliminarily finds that TAFISHCO 
has established prima facie that it qualifies for a separate rate under 
the criteria established by Silicon Carbide and Sparklers.

Bona Fide Sales Analysis

    Consistent with the Department's practice, we investigated the bona 
fide nature of the sales made by TAFISHCO in this NSR. We found that 
the sale made by TAFISHCO was made on a bona fide basis. Based on our 
investigation into the bona fide nature of the sale, the questionnaire 
responses submitted by TAFISHCO, and the company's eligibility for a 
separate rate (see Separate Rate Determination section above), we 
preliminarily determine that TAFISHCO has met the requirements to 
qualify as a new shipper during this POR. Therefore, for the purposes 
of these preliminary results of review, we are treating TAFISHCO's sale 
of subject merchandise to the United States as an appropriate 
transaction for this NSR.\7\
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    \7\ For a more detailed discussion of this issue, see Memorandum 
to the File, From Emeka Chukwudebe, Case Analyst, Office 9, Through 
Matthew Renkey, Acting Program Manager, Office 9: Antidumping Duty 
New Shipper Review of Certain Frozen Fish Fillets from the Socialist 
Republic of Vietnam: Bona Fide Nature of the Sale Under Review for 
Thuan An Production Trading & Services Co., Ltd. (``TAFISHCO''), 
dated November 4, 2011.
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Surrogate Country and Surrogate Values

    As stated above, between July 22, 2011, and August 12, 2011, the 
Department received surrogate country and SV comments from interested 
parties.

Surrogate Country

    When the Department is investigating imports from an NME country, 
section 773(c)(1) of the Act directs it to base NV, in most 
circumstances, on the NME producer's factors of production (``FOPs''), 
valued in a surrogate market economy (``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, TAFISHCO argues 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.\8\ 
Accordingly, unless we find that all of the countries determined to be 
equally economically comparable are not significant producers of 
comparable merchandise, do not provide a reliable source of publicly 
available surrogate data or are unsuitable for use for other reasons, 
we will rely on data from one of these countries. 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

[[Page 77487]]

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.\9\ 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.\10\ The Department is satisfied 
that they are equally comparable in terms of economic development and 
serve as an adequate group to consider when gathering SV 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'').\11\
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    \8\ See Memorandum from Carole Showers, Director, Office of 
Policy, to Matthew Renkey, Acting 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 May 9, 2011 (``Surrogate Country List'').
    \9\ 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 (``I&D Memo'') 
at Comment 4.
    \10\ See Surrogate Country List.
    \11\ 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 new shipper reviews, 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.\12\ 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,\13\ Bangladesh, the Philippines, 
Indonesia, India, Sri Lanka, and Pakistan are exporters of frozen fish 
fillets and, thus, significant producers.
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    \12\ 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 in Certain Magnesia Carbon Bricks From 
the People's Republic of China: Final Determination of Sales at Less 
Than Fair Value and Critical Circumstances, 75 FR 45468 (August 2, 
2010).
    \13\ See Surrogate Country List.
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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.\14\ 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 SV data from Bangladesh, the Philippines, Indonesia, and India.
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    \14\ See Department Policy Bulletin No. 04.1: Non-Market Economy 
Surrogate Country Selection Process (March 1, 2004).
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Bangladesh

    TAFISHCO placed the Bangladeshi Department of Agriculture 
Marketing, Ministry of Agriculture, pangas price data (``DAM data'') on 
the record, which includes monthly price data for 2008, 2009, and 
2010.\15\ The Department issued two letters to the Bangladeshi 
Department of Agriculture Marketing requesting, among other things, 
more information regarding the publicly availability of the DAM 
data.\16\ We have yet to receive a response from the Bangladeshi 
Department of Agriculture Marketing.
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    \15\ See TAFISHCO's First Surrogate Value Submission, dated July 
29, 2011, at Exhibit 13A.
    \16\ See Letter to Fahmida Akhter, Deputy Director of Market 
Intelligence and Statistics, 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; and Letter to Siddiqur 
Rahman, Director of Department of Agricultural Marketing, from James 
C. Doyle, Office Director: Questions for the Bangladeshi Department 
of Agricultural Marketing Regarding National Wholesale Price Data, 
dated September 13, 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.\17\ The Department issued a letter to the Philippines 
Bureau of Agricultural Statistics (``BAS''), requesting among other 
things, more information regarding the public availability of the 
Fisheries Statistics.\18\ We received a response from the Philippines 
BAS, which we placed on the record.\19\
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    \17\ See Petitioners' Surrogate Country Comments and Submission 
of Proposed Factor Values, dated July 29, 2011, at Exhibit 9.
    \18\ 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.
    \19\ 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.
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Indonesia

    The Department placed on the record 2009 annual Indonesian price 
and quantity data from the United Nations Food and Agriculture 
Organization's Fisheries Global Information System (``FIGIS 
data'').\20\
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    \20\ See Memorandum to the File, from Alexis Polovina, Case 
Analyst, dated July 15, 2011.
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India

    TAFISHCO placed the Present Status of the Pangasius, Pangasianodon-
Hypophthalmus Farming in Andhra Pradesh, India (``Pangasius Study''), 
on the record.\21\
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    \21\ See TAFISHCO's First Surrogate Value Submission, dated July 
29, 2011, at Exhibit 32A.
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Analysis

    When evaluating SV data, the Department considers several factors 
including whether the SV is publicly available, is contemporaneous with 
the POR, represents a broad-market average, is from an approved 
surrogate country, is tax and duty-exclusive, and is 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'' \22\ 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

[[Page 77488]]

or if the study represents a broad market average.\23\ Furthermore, the 
study appears to be based on estimates for one Indian state.\24\ 
Therefore, we find that the Pangasius Study is not the most suitable 
source on the record for purposes of these preliminary results.
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    \22\ See Pangasius Study at 1.
    \23\ 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).
    \24\ See Pangasius Study at 28.
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    TAFISHCO claims that the Philippines' Pangasius industries receive 
government assistance, in the forms of techno-farms and education, and 
should, therefore, be disregarded as a surrogate country. 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.\25\ In this case, as we have 
found in prior reviews, there is no record evidence that the subsidies 
alleged by TAFISHCO constitute countervailing subsidies.
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    \25\ 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 I&D Memo at 
Comment 1; See also Silicon Metal from the People's Republic of 
China: Notice of Final Results of 2005/2006 New Shipper Reviews, 72 
FR 58641(October 16, 2007) and accompanying I&D Memo at Comment 2.
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    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 BAS, requesting among other things, more information 
regarding the public availability of the DAM data and regarding the 
pricing data in the Fisheries Statistics.\26\ While we received a 
response from the Philippines BAS, we have yet to receive a response 
from the Bangladeshi Department of Agriculture Marketing, and are 
therefore, at this time, unable to independently ascertain and confirm 
the public availability of the DAM data.
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    \26\ 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; 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, and; Letter to Siddiqur Rahman, 
Director of Department of Agricultural Marketing, from James C. 
Doyle, Office Director: Questions for the Bangladeshi Department of 
Agricultural Marketing Regarding National Wholesale Price Data, 
dated September 13, 2011.
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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 Hypothalmus.\27\ 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 with respect 
to the Fisheries Statistics, and clearly explained in the I&D 
Memos,\28\ still remain, and we note these observations do not apply to 
the FIGIS data. Finally, with respect to contemporaneity, given that 
the yearly data for 2009 is not so far removed from the POR for this 
NSR, we do not find contemporaniety to be an issue in selecting 
Indonesia as the primary surrogate country in lieu of either the 
Philippines or Bangladesh.
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    \27\ 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), and accompanying I&D Memo (``6th AR Final''). See 
also, 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), and accompanying I&D Memo (``09-10 NSR 
Final'').
    \28\ For complete details regarding the Department's 
observations, see 6th AR Final I&D Memo at 9-14, and 09-10 NSR Final 
I&D Memo at 10-15.
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    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 both Bangladesh and the Philippines satisfy the remaining 
criteria for selection of surrogate country and because the record 
contains more numerous sources from both Bangladesh and the 
Philippines, we find them to be suitable secondary surrogate countries. 
In particular, we intend to rely on financial statements from 
Bangladesh for purposes of these preliminary results. The record 
contains three financial statements from Bangladesh, including one from 
a processing company (Gemini Sea Food) that matches the production 
experience of TAFISHCO. Thus, for purposes of these preliminary 
results, we intend to use the financial statements from Gemini Sea Food 
to calculate the financial ratios.
    We hereby invite parties to submit additional comments regarding 
surrogate country selection to be considered for the final results.\29\
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    \29\ Interested parties must provide the Department with 
supporting documentation for the publicly available information to 
value each FOP. Additionally, in accordance with 19 CFR 
351.301(c)(1), for the final results of this new shipper review, 
interested parties may submit factual information to rebut, clarify, 
or correct factual information submitted by an interested party less 
than ten days before, on, or after, the applicable deadline for 
submission of such factual information. However, the Department 
notes that 19 CFR 351.301(c)(1) permits new information only insofar 
as it rebuts, clarifies, or corrects information recently placed on 
the record. The Department generally cannot accept the submission of 
additional, previously absent-from-the-record alternative surrogate 
value information pursuant to 19 CFR 351.301(c)(1). See Glycine From 
the People's Republic of China: Final Results of Antidumping Duty 
Administrative Review and Final Rescission, in Part, 72 FR 58809 
(October 17, 2007) and accompanying I&D Memo at Comment 2. 
Additionally, for each piece of factual information submitted with 
surrogate value rebuttal comments, the interested party must provide 
a written explanation of what information that is already on the 
record of the ongoing proceeding that the factual information is 
rebutting, clarifying, or correcting.
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Fair Value Comparisons

    To determine whether sales of the subject merchandise made by 
TAFISHCO to the United States were at prices below NV, we compared the 
company's export price (``EP'') to its NV, as described below.

U.S. Price

    For TAFISHCO's EP sale, we used the EP methodology, pursuant to 
section 772(a) of the Act, because the first sale to an unaffiliated 
purchaser was made

[[Page 77489]]

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.

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 FOP reported by 
TAFISHCO pursuant to sections 773(c)(3) and (4) of the Act and 19 CFR 
351.408(c).

Factor Valuation

    In accordance with section 773(c) of the Act, the Department 
calculated NV based on FOPs reported by TAFISHCO for the POR. The 
Department valued the processing FOPs using publicly available 
Indonesian and Bangladeshi SVs. To calculate NV, the Department valued 
TAFISHCO's reported per-unit factor quantities using publicly available 
Indonesian, Bangladeshi, and Indian SVs. 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 
Indian sources. In selecting SVs, 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 SVs 
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 SVs if it has a reason to believe or suspect the source 
data may be subsidized.\30\ In this regard, the Department has 
previously found that it is appropriate to disregard such prices from 
India, Indonesia, South Korea and Thailand because we have determined 
that these countries maintain broadly available, non-industry specific 
export subsidies.\31\ 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.
---------------------------------------------------------------------------

    \30\ 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.
    \31\ 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 I&D Memo 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 I&D Memo 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 I&D Memo 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 I&D Memo at 23.
---------------------------------------------------------------------------

    Additionally, we disregarded prices from NME countries. Finally, 
imports that were labeled as originating from an ``unspecified'' 
country were excluded from the average value, because the Department 
could not be certain that they were not from either an NME country or a 
country with general export subsidies. For further detail, see 
Memorandum to The File, through Matthew Renkey, Acting Program Manager, 
Import Administration, from Emeka Chukwudebe, Case Analyst, Import 
Administration, Re: Antidumping New Shipper Review of Certain Frozen 
Fish Fillets from the Socialist Republic of Vietnam: Surrogate Values 
for the Preliminary Results, dated December 5, 2011 (``Surrogate Values 
Memo'').

Labor

    Section 773(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.\32\
---------------------------------------------------------------------------

    \32\ 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). 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.\33\
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    \33\ 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.\34\ 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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    \34\ See Antidumping Methodologies in Proceedings Involving Non-
Market Economies: Valuing the Factor of Production: Labor, 76 FR 
36092 (June 21, 2011) (``Labor Methodologies'').
---------------------------------------------------------------------------

    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 TAFISHCO's 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

[[Page 77490]]

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 4,568.71 Indonesian Rupiahs per 
hour. A more detailed description of the wage rate calculation 
methodology is provided in the Surrogate Values 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

    The Department preliminarily finds that the following margin exists 
for the period August 1, 2010, to January 31, 2011.

------------------------------------------------------------------------
                                                Weighted-average  margin
           Exporter                Producer       (dollars per kilogram)
------------------------------------------------------------------------
Thuan An Production Trading &  Thuan An                            0.00
 Services Co., Ltd..            Production
                                Trading &
                                Services Co.,
                                Ltd.
------------------------------------------------------------------------

Public Comments

    The Department intends to disclose calculations performed for these 
preliminary results to the parties within five days of the date of 
publication of this notice in accordance with 19 CFR 351.224(b). Any 
interested party may request a hearing within 30 days of publication of 
these preliminary results.\35\ If a hearing is requested, the 
Department will announce the hearing schedule at a later date. 
Interested parties may submit case briefs and/or written comments no 
later than 30 days after the date of publication of the preliminary 
results of review.\36\ Rebuttal briefs and rebuttals to written 
comments, limited to issues raised in such briefs or comments, may be 
filed no later than five days after the time limit for filing the case 
briefs.\37\ The Department intends to issue the final results of this 
new shipper review, which will include the results of its analysis of 
issues raised in all comments, and at a hearing, within 120 days of 
publication of these preliminary results, pursuant to section 
751(a)(3)(A) of the Act.
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    \35\ See 19 CFR 351.310(c).
    \36\ See 19 CFR 351.309(c); Parties submitting written comments 
must submit them pursuant to the Department's e-filing regulations. 
See https://iaaccess.trade.gov/help/IA%20ACCESS%20User%20Guide.pdf.
    \37\ See 19 CFR 351.309(d).
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Assessment Rates

    Upon completion of the final results, pursuant to 19 CFR 
351.212(b), the Department will determine, and CBP shall assess, 
antidumping duties on all appropriate entries on a per-unit basis. The 
Department intends to issue assessment instructions to CBP 15 days 
after the date of publication of the final results of review. If these 
preliminary results are adopted in our final results of review, the 
Department shall determine, and CBP shall assess, antidumping duties on 
all appropriate entries. Pursuant to 19 CFR 351.212(b)(1), we will 
calculate importer-specific (or customer) per-unit duty assessment 
rates. We will instruct CBP to assess antidumping duties on all 
appropriate entries covered by this review if any importer-specific 
assessment rate calculated in the final results of this review is above 
de minimis.

Cash Deposit Requirements

    The following cash deposit requirements will be effective upon 
publication of the final results of this new shipper review for all 
shipments of subject merchandise from TAFISHCO entered, or withdrawn 
from warehouse, for consumption on or after the publication date, as 
provided for by section 751(a)(2)(C) of the Act: (1) For subject 
merchandise produced and exported by TAFISHCO, the cash deposit rate 
will be $0.00/Kg.; (2) for subject merchandise exported by TAFISHCO but 
not manufactured by TAFISHCO, the cash deposit rate will continue to be 
the Vietnam-wide rate (i.e., $2.11 per kilogram); and (3) for subject 
merchandise manufactured by TAFISHCO, but exported by any other party, 
the cash deposit rate will be the rate applicable to the exporter. If 
the cash deposit rate calculated in the final results is zero or de 
minimis, no cash deposit will be required for those specific producer-
exporter combinations. These cash deposit requirements, when imposed, 
shall remain in effect until further notice.

Notification to Interested Parties

    This notice serves as a preliminary reminder to importers of their 
responsibility under 19 CFR 351.402(f)(2) to file a certificate 
regarding the reimbursement of antidumping duties prior to liquidation 
of the relevant entries during this POR. Failure to comply with this 
requirement could result in the Secretary's presumption that 
reimbursement of antidumping duties occurred and the subsequent 
assessment of double antidumping duties.
    We are issuing and publishing this determination in accordance with 
sections 751(b) and 777(i)(1) of the Act.

    Dated: December 5, 2011.
Kim Glas,
Deputy Assistant Secretary for Textiles and Apparel.
[FR Doc. 2011-31934 Filed 12-12-11; 8:45 am]
BILLING CODE 3510-DS-P