[Federal Register Volume 74, Number 171 (Friday, September 4, 2009)]
[Notices]
[Pages 45805-45811]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-21429]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-552-801]
Certain Frozen Fish Fillets From the Socialist Republic of
Vietnam: Notice of Preliminary Results of New Shipper Reviews and Fifth
Antidumping Duty Administrative Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce (``Department'') is conducting new
shipper reviews and an administrative review of the antidumping duty
order on certain frozen fish fillets from the Socialist Republic of
Vietnam (``Vietnam''). See Notice of Antidumping Duty Order: Certain
Frozen Fish Fillets From the Socialist Republic of Vietnam, 68 FR 47909
(August 12, 2003) (``Order''). We preliminarily find that QVD Food
Company Ltd. (``QVD''),\1\ Vinh Hoan Corporation (``Vinh Hoan''),
Saigon-Mekong Fishery Co. (``SAMEFICO''), and Cadovimex II Seafood
Import-Export & Processing Joint Stock Company (``Cadovimex II'') did
not sell subject merchandise at less than normal value (``NV'') during
the period of review (``POR''), August 1, 2007, through July 31, 2008.
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\1\ The Department is treating QVD, QVD Dong Thap Food Co., Ltd.
(``QVD DT''), and Thuan Hung Co., Ltd. (``Thuan Hung'') as a single
entity in these preliminary results. Similarly, the Department is
treating Vinh Hoan, Vinh Hoan USA Inc. (``Vinh Hoan USA''), and Van
Duc Food Export Joint Stock Company (``Van Duc'') as a single
entity. Section 351.401(f) of the Department's regulations define
single entities as those affiliated producers who have production
facilities for similar or identical products that would not require
substantial retooling of either facility in order to restructure
manufacturing priorities and the Secretary concludes that there is a
significant potential for the manipulation of price or production.
For further analysis, see Affiliations section below.
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DATES: Effective Date: September 4, 2009.
FOR FURTHER INFORMATION CONTACT: Alan Ray (QVD), Javier Barrientos
(Vinh Hoan), Alexis Polovina (SAMEFICO), and Tim Lord (Cadovimex II)
Office 9, AD/CVD Operations, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW., Washington, DC 20230; telephone (202) 482-
5403, (202) 482-2243, (202) 482-3927, and (202) 482-7425, respectively.
SUPPLEMENTARY INFORMATION:
Case History
On August 1, 2008, the Department published a notice of an
opportunity to request an administrative review of the order. See
Antidumping or Countervailing Duty Order, Finding, or Suspended
Investigation; Opportunity To Request Administrative Review, 73 FR
44966 (August 1, 2008). By August 31, 2008, the Department received
review requests for 20 companies from Petitioners \2\ and certain
individual companies. In addition, pursuant to 19 CFR 351.214(c), the
Department also received new shipper review requests from SAMEFICO and
Cadovimex II on August 8, 2008, and, August 24, 2008, respectively.
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\2\ The Catfish Farmers of America and individual U.S. catfish
processors, America's Catch, Consolidated Catfish Companies, LLC dba
Country Select Catfish, Delta Pride Catfish, Inc., Harvest Select
Catfish, Inc., Heartland Catfish Company, Pride of the Pond, Simmons
Farm Raised Catfish, Inc., and Southern Pride Catfish Company LLC
(``Petitioners'').
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On September 30, 2008, the Department initiated an antidumping
[[Page 45806]]
duty administrative review on frozen fish fillets from Vietnam covering
20 companies. See Initiation of Antidumping and Countervailing Duty
Administrative Reviews and Requests for Revocation in Part (``5th AR
Initiation''), 73 FR 56795 (September 30, 2008).\3\
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\3\ We note that the initiation notice contained 20 companies.
However, two of those companies (Vinh Hoan Co., Ltd. and Vinh Hoan
Corporation) are the same company, existing with the former name
prior to the POR and with the latter name during and after the POR.
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On October 1, 2008, the Department initiated the new shipper
reviews for SAMEFICO and Cadovimex II. See Certain Frozen Fish Fillets
from the Socialist Republic of Vietnam: Initiation of New Shipper
Reviews, 73 FR 57058 (October 1, 2008).
On October 29, 2008, the Department issued a letter to all
interested parties informing them of its decision to select QVD and
Vinh Hoan, the two largest exporters of subject merchandise during the
POR, as mandatory respondents based on Customs and Border Protection
(``CBP'') import data for the fifth administrative review. See
Memorandum to the File from Alexis Polovina, Case Analyst, through Alex
Villanueva, Program Manager, Antidumping Duty Administrative Review of
Frozen Fish Fillets from the Socialist Republic of Vietnam: Selection
of Respondents for Individual Review (``Respondent Selection Memo''),
dated October 29, 2008.
Between December 4, 2009, and June 23, 2009, QVD submitted
responses to the original sections A, C, and D questionnaires and
supplemental sections A, C, and D questionnaires. Between November 24,
2008, and June 10, 2009, Vinh Hoan submitted responses to the original
sections A, C, and D questionnaires and supplemental sections A, C, and
D questionnaires.
In the new shipper reviews, Cadovimex submitted responses to
questionnaires between November 4, 2008, and July 15, 2009. SAMEFICO
submitted responses to questionnaires between December 31, 2008, and
March 31, 2009.
On March 20, 2009, the Department aligned the antidumping duty new
shipper and administrative reviews. On April 23, 2009, the Department
extended the deadline for the preliminary results of this review by 120
days, to August 31, 2009. See Certain Frozen Fish Fillets from the
Socialist Republic of Vietnam: Extension of Time Limit for Preliminary
Results of the Fifth Antidumping Duty Administrative Review (``Prelim
Extension''), 74 FR 18549 (April 23, 2009).
On April 30, 2009, the Department rescinded the administrative
review with respect to 13 companies because all requesting parties for
those companies withdrew their requests for review in a timely manner.
See Certain Frozen Fish Fillets From the Socialist Republic of Vietnam:
Notice of Partial Rescission of the Fifth Antidumping Duty
Administrative Review, 74 FR 19933 (April 30, 2009) (``5th AR Partial
Rescission'').\4\ Therefore, seven companies remain in this
administrative review: East Sea Seafoods Joint Venture Co., Ltd.
(``East Sea''), the QVD single entity, representing three affiliated
and collapsed companies, An Giang Fisheries Import and Export Joint
Stock Company (``Agifish'' or ``AnGiang Fisheries Import and Export''),
Vinh Hoan Corporation, and Vinh Hoan Company, Ltd.
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\4\ Pursuant to 5th AR Partial Rescision, the Department
rescinded on the 13 following companies: An Xuyen Co., Ltd.; Asia
Commerce Fisheries Joint Stock Company (aka Acomfish JSC); Ben Tre
Forestry Aquaproduct Import-Export Company (aka FAQUIMEX); Binh An
Seafood Joint Stock Co.; Hiep Thanh Seafood Joint Stock Co.; Hung
Vuong Corporation; Nam Viet Company Limited (aka NAVICO); Phuong Nam
Co., Ltd.; Da Nang Seaproducts Import-Export Corporation (aka Da
Nang or Seaprodex Danang); Southern Fishery Industries Company, Ltd.
(aka South Vina); Thien Ma Seafood Co., Ltd.; Vinh Quang Fisheries
Corporation; and Anvifish Co., Ltd.
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QVD's Revocation Request
On August 29, 2008, in QVD's request for an administrative review,
QVD requested that the antidumping order be revoked for QVD, pursuant
to section 351.222(b)(2) of the Department's regulations. Section
351.222(b)(2) permits, in relevant part, the Department to revoke an
order in part with regard to a particular company if that company has
not sold the subject merchandise at less than NV for a period of at
least three consecutive years. QVD participated in the second, third,
and fourth administrative reviews. QVD received a weighted- average
margin of 0.0 percent in the second and third administrative reviews,
but received a weighted-average margin of 0.52 percent in the fourth
administrative review. Because QVD sold merchandise at less than NV
during the fourth administrative review, it does not qualify for
revocation under the Department's regulations.
Vietnam-Wide Entity
As discussed above, in this administrative review we limited the
selection of respondents using CBP import data. See Respondent
Selection Memo at 2. In this case, we made available to the companies
who were not selected, the separate rates application and
certification, which were put on the Department's Web site. See 5th AR
Initiation, dated September 30, 2008. Those companies which did not
apply for separate rates will continue to be part of the Vietnam-wide
entity. Because the Department determines preliminarily that there were
exports of merchandise under review from Vietnam producers/exporters
that did not demonstrate their eligibility for separate-rate status,
the Vietnam-wide entity is now under review.
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 (``the Act''). Accordingly, there is a
rebuttable presumption that all companies within Vietnam are subject to
government control and, thus, should be assessed a single antidumping
duty rate. It is the Department's standard policy to assign all
exporters of the merchandise subject to review in NME countries a
single rate unless an exporter can affirmatively demonstrate an absence
of government control, both in law (de jure) and in fact (de facto),
with respect to exports. To establish whether a company is sufficiently
independent to be entitled to a separate, company-specific rate, the
Department analyzes each exporting entity in an NME country under the
test established in the Final Determination of Sales at Less than Fair
Value: Sparklers from the People's Republic of China, 56 FR 20588 (May
6, 1991) (``Sparklers''), as amplified by the Notice of Final
Determination of Sales at Less Than Fair Value: Silicon Carbide from
the People's Republic of China, 59 FR 22585 (May 2, 1994) (``Silicon
Carbide'').
A. Absence of De Jure Control
The Department considers the following de jure criteria in
determining whether an individual company may be granted a separate
rate: (1) An absence of restrictive stipulations associated with an
individual exporter's business and export licenses; and (2) any
legislative enactments decentralizing control of companies.
Although the Department has previously assigned a separate rate to
all of the companies eligible for a separate rate in the instant
proceeding, it is the Department's policy to evaluate separate rates
questionnaire responses each time a respondent makes a separate rates
claim, regardless of whether the respondent received a separate rate in
the past. See Manganese Metal from the People's Republic of China,
Final
[[Page 45807]]
Results and Partial Rescission of Antidumping Duty Administrative
Review, 63 FR 12440 (March 13, 1998).
In this review, Agifish, Vinh Hoan, QVD, and East Sea \5\ submitted
complete separate rates certifications and applications. SAMEFICO and
Cadovimex II provided separate rate information in their questionnaire
responses. The evidence submitted by these companies includes
government laws and regulations on corporate ownership, business
licenses, and narrative information regarding the companies' operations
and selection of management. The evidence provided by these companies
support 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.
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\5\ East Sea addressed the separate rates section of the
Department's questionnaire in its November 25, 2008, submission as
the certification it had submitted was no longer valid given that
there had been a change in ownership and in name.
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B. Absence of De Facto Control
The absence of de facto government control over exports is based on
whether the respondent: (1) Sets its own export prices independent of
the government and other exporters; (2) retains the proceeds from its
export sales and makes independent decisions regarding the disposition
of profits or financing of losses; (3) has the authority to negotiate
and sign contracts and other agreements; and (4) has autonomy from the
government regarding the selection of management. See Silicon Carbide,
59 FR at 22587; Sparklers, 56 FR at 20589; see also Notice of Final
Determination of Sales at Less Than Fair Value: Furfuryl Alcohol from
the People's Republic of China, 60 FR 22544, 22545 (May 8, 1995).
In this review, Agifish, Vinh Hoan, QVD, SAMEFICO, Cadovimex II,
and East Sea 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 Agifish,
Vinh Hoan, QVD, and East Sea have established prima facie 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 two companies that were not selected for
individual examination, East Sea and Agifish. The statute and the
Department's regulations do not address the establishment of a rate to
be applied to individual companies not selected for examination where
the Department limited its examination in an administrative review
pursuant to section 777A(c)(2) of the Act. Generally we have looked to
section 735(c)(5) of the Act, which provides instructions for
calculating the all-others rate in an investigation, for guidance when
calculating the rate for respondents we did not examine in an
administrative review. Section 735(c)(5)(A) of the Act instructs 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 practice in this regard, in reviews involving limited
respondent selection based on exporters accounting for the largest
volumes of trade, has been to average the rates for the selected
companies, excluding zero and de minimis rates and rates based entirely
on facts available. See Certain Frozen Warmwater Shrimp From the
Socialist Republic of Vietnam: Final Results and Final Partial
Rescission of Antidumping Duty Administrative Review, 73 FR 52273,
52275 (September 9, 2008) and accompanying Issues and Decision
Memorandum at Comment 6 (``Shrimp from Vietnam I & D''). 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.''
In this case, the rates for both individually examined respondents
are de minimis and accordingly, the Department will determine a
reasonable method for assigning a rate to East Sea and Agifish. The
Department has available in administrative reviews information that
would not be available in an investigation, namely rates from prior
administrative and new shipper reviews. Accordingly, since the
determination in the investigation in this proceeding, the Department
has determined that in cases where we have found dumping margins in
previous segments of a proceeding, a reasonable method for determining
the rate for non-selected companies is to use the most recent rate
calculated for the non-selected company in question unless we
calculated in a more recent review a rate for any company that was not
zero, de minimis or based entirely on facts available. See Shrimp from
Vietnam I & D at Comment 6; 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 6; Certain Fish Fillets from the
Socialist Republic of Vietnam: Notice of Preliminary Results of the New
Shipper Review and Fourth Antidumping Duty Administrative Review and
Partial Rescission of the Fourth Administrative Review, 73 FR 52015
(September 8, 2008) (changed in final results as final calculated rate
for mandatory respondent was above de minimis, which remained unchanged
in the amended final results); see also Certain Polyester Staple Fiber
From the People's Republic of China: Notice of Preliminary Results of
the Antidumping Duty Administrative Review and Extension of Time Limits
for the Final Results, 74 FR 32125 (July 7, 2009). Agifish recently
received an assigned non-de minimis per-unit rate of $0.02 per kilogram
in an antidumping duty new shipper and administrative review.\6\ See
Notice of Amended Final Results of Antidumping Duty Administrative
Review: Certain Frozen Fish Fillets from Vietnam (``4th AR Final''), 74
FR 17816 (April 17, 2009). We have assigned a non-selected separate
rate of $0.02 per kilogram for Agifish and East Sea for the purposes of
these preliminary results, as it is the assigned rate from the most
recently completed segment of the proceeding that is above de minimis
and not based on adverse facts available (``AFA''). The $0.02 per
kilogram is a non-de minimis per unit rate. For the Vietnam-wide
entity, we have assigned the entity's current rate and only rate ever
determined for the entity in this proceeding, which is $2.11 per
[[Page 45808]]
kilogram, which is a non-de minimis per-unit rate.
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\6\ The rate assigned for Agifish was, in ad valorem terms,
above de minimis.
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Verification
Pursuant to 19 CFR 351.307(b)(iv), we conducted verification of the
sales and factors of production (``FOP'') for SAMEFICO between April
13-15, 2009, in Tra Vinh City Vietnam. See Memorandum to the File from
Alexis Polovina and Timothy Lord, Case Analysts through Alex
Villanueva, Program Manager, Verification of the Sales and Processing
Response of Saigon-Mekong Fishery Co., Ltd. (``SAMEFICO'') in the
Antidumping New Shipper Review of Certain Frozen Fish Fillets from the
Socialist Republic of Vietnam (``Vietnam''), dated June 30, 2009
(``SAMEFICO Verification Report''). We conducted a verification of the
sales and FOP for Vinh Hoan between June 22 and July 1, 2009 in Cao
Lanh, Dong Thap Province and in Ho Chi Minh City Vietnam. See
Memorandum to the File from Javier Barrientos and Alan Ray, Senior and
Case Analysts, through Alex Villanueva, Program Manager, Verification
of the Sales and Processing Response of Vinh Hoan Co., Ltd/Corp.
(``Vinh Hoan'') in the Antidumping Duty New Shipper and Administrative
Reviews of Certain Frozen Fish Fillets from the Socialist Republic of
Vietnam (``Vietnam''), dated August 28, 2009 (``Vinh Hoan Verification
Report'').
Scope of the Order
The product covered by this Order is frozen fish fillets, including
regular, shank, and strip fillets and portions thereof, whether or not
breaded or marinated, of the species Pangasius Bocourti, Pangasius
Hypophthalmus (also known as Pangasius Pangasius), and Pangasius
Micronemus. Frozen fish fillets are lengthwise cuts of whole fish. The
fillet products covered by the scope include boneless fillets with the
belly flap intact (``regular'' fillets), boneless fillets with the
belly flap removed (``shank'' fillets), boneless shank fillets cut into
strips (``fillet strips/finger''), which include fillets cut into
strips, chunks, blocks, skewers, or any other shape. Specifically
excluded from the scope are frozen whole fish (whether or not dressed),
frozen steaks, and frozen belly-flap nuggets. Frozen whole dressed fish
are deheaded, skinned, and eviscerated. Steaks are bone-in, cross-
section cuts of dressed fish. Nuggets are the belly-flaps. The subject
merchandise will be hereinafter referred to as frozen ``basa'' and
``tra'' fillets, which are the Vietnamese common names for these
species of fish. These products are classifiable under tariff article
codes 1604.19.4000, 1604.19.5000, 0305.59.4000, 0304.29.6033 (Frozen
Fish Fillets of the species Pangasius including basa and tra) of the
Harmonized Tariff Schedule of the United States (``HTSUS'').\7\ This
Order covers all frozen fish fillets meeting the above specification,
regardless of tariff classification. Although the HTSUS subheading is
provided for convenience and customs purposes, our written description
of the scope of the Order is dispositive.
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\7\ 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 (``the Act''), any
determination that a foreign country is an NME country shall remain in
effect until revoked by the administering authority. See Notice of
Final Results of Administrative Review: Certain Frozen Fish Fillets
from the Socialist Republic of Vietnam, 73 FR 15479 (March 17, 2008)
and accompanying Issues and Decision Memorandum (``3rd AR Final
Results''). None of the parties to this proceeding have contested such
treatment. Accordingly, we calculated NV in accordance with section
773(c) of the Act, which applies to NME countries.
Surrogate Country and Surrogate Values
On April 2, 2009, the Department sent interested parties a letter
setting a deadline to submit comments on surrogate country selection
and information pertaining to valuing factors of production (``FOP'').
QVD, Cadovimex II, SAMEFICO, and Petitioners submitted surrogate
country comments and surrogate value data on April 20, 2009. On April
30, 2009, Respondents submitted a rebuttal to Petitioners' comments. On
August 10, 2009, Respondents reiterated their April 20 and April 30,
2009, comments.
Surrogate Country
When the Department is investigating imports from an NME country,
section 773(c)(1) of the Act directs it to base NV, in most
circumstances, on the NME producer's FOPs, valued in a surrogate market
economy country or countries considered to be appropriate by the
Department. In accordance with section 773(c)(4) of the Act, in valuing
the FOPs, the Department shall utilize, to the extent possible, the
prices or costs of FOPs in one or more market economy countries that
are: (1) At a level of economic development comparable to that of the
NME country; and (2) significant producers of comparable merchandise.
The sources of the surrogate factor values are discussed under the
``Normal Value'' section below and in the Memorandum to the File
through Alex Villanueva, Program Manager, Office 9, from Alexis
Polovina, Case Analyst, dated August 27, 2009.
The Department determined that Bangladesh, Pakistan, India,
Indonesia, the Philippines, and Sri Lanka are countries comparable to
Vietnam in terms of economic development.\8\ Once it has identified
economically comparable countries, the Department's practice is to
select an appropriate surrogate country from the list based on the
availability and reliability of data from the countries. See Department
Policy Bulletin No. 04.1: Non-Market Economy Surrogate Country
Selection Process (March 1, 2004).
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\8\ See Memorandum from Kelly Parkhill, Acting Director of
Office of Policy, to Alex Villanueva, Program Manager, China/NME
Group, Office 9: Antidumping Duty Administrative Review of Certain
Frozen Fish Fillets from the Socialist Republic of Vietnam
(Vietnam): Request for a List of Surrogate Countries (``Surrogate
Country List'') (January 15, 2009).
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In this case, we have found that Bangladesh is a significant
producer of comparable merchandise. We find Bangladesh to be a reliable
source for surrogate values because Bangladesh is at a similar level of
economic development pursuant to section 773(c)(4) of the Act, is a
significant producer of comparable merchandise, and has more complete
publicly available and reliable data. Thus, we have selected Bangladesh
as the primary surrogate country for this administrative review.
However, in certain instances where Bangladeshi data was not available,
we looked to see if Philippine data was available, and if not, we used
data from Indian or Indonesian sources. For a more complete explanation
of the surrogate country selection, see Memorandum to the File, through
James C. Doyle, Office 9 Director, through Alex Villanueva, Office 9
Program Manager, from Timothy Lord, Office 9 Case Analyst, dated August
28, 2009, Fifth Antidumping Duty Administrative Review and Aligned
Fourth New Shipper Review of Certain Frozen Fish Fillets from the
Socialist Republic of
[[Page 45809]]
Vietnam: Selection of a Surrogate Country (``Surrogate Value Memo'').
In accordance with 19 CFR 351.301(c)(3)(ii), for the final results
in an antidumping administrative review, interested parties may submit
publicly available information to value FOPs within 20 days after the
date of publication of these preliminary results.
Affiliations
Section 771 (33) of the Act provides that:
The following persons shall be considered to be `affiliated' or
`affiliated persons':
(A) Members of a family, including brothers and sisters (whether by
the whole or half blood), spouse, ancestors, and lineal descendants;
(B) Any officer of director of an organization and such
organization;
(C) Partners;
(D) Employer and employee;
(E) Any person directly or indirectly owning, controlling, or
holding with power to vote, 5 percent or more of the outstanding voting
stock or shares of any organization and such organization;
(F) Two or more persons directly or indirectly controlling,
controlled by, or under common control with, any person;
(G) Any person who controls any other person and such other person.
Additionally, section 771(33) of the Act stipulates that: ``For
purposes of this paragraph, a person shall be considered to control
another person if the person is legally or operationally in a position
to exercise restrain or direction over the other person.''
In the final results of the third antidumping duty administrative
review, the Department determined that QVD Choi Moi Farming Cooperative
(``QVD Choi Moi'') would no longer be collapsed with QVD, QVD DT, and
Thuan Hung, pursuat to sections 771(33)(A), (B), (E), (F), and (G) of
the Act and 19 CFR 351.401(f). See Memorandum to David M. Spooner,
Assistant Secretary for Import Administration, from Stephen J. Claeys,
Deputy Assistant Secretary: Issues and Decision Memorandum for the
Final Results of the Administrative Review: Certain Frozen Fish Fillets
from the Socialist Republic of Vietnam (``Vietnam'') (``3rd I & D'')
(March 17, 2008). The Department also determined that QVD USA is
affiliated with QVD, QVD Dong Thap, and Thuan Hung pursuant to sections
771(33)(A), (B), (E), (F), and (G) of the Act. Therefore, the
Department determined to calculate a constructed export price (``CEP'')
through QVD USA to its first unaffiliated U.S. customer. See 3rd I & D
at Comment 5. The Department also determined that Beaver Street
Fisheries (``BSF'') and QVD USA were not affiliated. See Id.
In QVD's Section A Questionnaire Response, it stated that during
the POR ``the QVD shareholders sold the land and all shareholdings in
QVD Choi Moi on May 4, 2008.'' See QVD's December 4, 2008, Section A
Questionnaire at 3. Therefore, based on the record evidence in this
review we find find QVD Choi Moi is no longer affiliated with QVD
entities as of May 4, 2008.
For these preliminary results, based on the information on the
record of this proceeding, the Department continues to find that QVD,
QVD DT, and Thuan Hung should be collapsed and treated as a single
entity. See 3rd I & D at Comment 5. Similarly, for these preliminary
results, based on the information on the record of this proceeding, the
Department continues to find that QVD and QVD USA are affiliated
pursuant to sections 771(33)(A), (B), (E), (F), and (G) of the Act. For
these preliminary results, we also continue to find that BSF and QVD
USA are not affiliated.
Based on evidence submitted by Vinh Hoan and explained at
verification, we preliminarily find that Vinh Hoan is affiliated Vinh
Hoan 1 Feed Joint Stock Company (``Vinh Hoan Feed'') and Van Duc,
pursuant to section 771(33) of the Act. Because much of the facts
underlying this determination are business proprietary, for a detailed
discussion of affiliations, please see Vinh Hoan Verification Report at
pages 4-8 and 15-18. In addition, based on evidence found at
verification of Vinh Hoan, we preliminarily find that Vinh Hoan, and
Van Duc, but not Vinh Hoan Feed, should be treated as a single entity
for purposes of this new shipper review. See 19 CFR 351.401(f)(1).
Also based on evidence submitted by Vinh Hoan and explained at
verification, we preliminarily find that Vinh Hoan is affiliated Vinh
Hoan USA, pursuant to section 771(33) of the Act. Id.
Based on evidence submitted by Cadovimex II in their questionnaire
responses, we preliminarily find that Cadovimex II is affiliated with
Oceanwide Seafood, LLC (``Oceanwide''), pursuant to section 771(33) of
the Act. Id.
Fair Value Comparisons
To determine whether sales of the subject merchandise made by QVD,
Vinh Hoan, SAMEFICO or Cadovimex II to the United States were at prices
below NV, we compared each company's export price (``EP'') or CEP,
where appropriate, to NV, as described below.
U.S. Price
For SAMEFICO's and 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 and CEP
was not otherwise warranted by the facts on the record. We calculated
EP based on the Free-on-board foreign port price to the first
unaffiliated purchaser in the United States. For the EP sales, we also
deducted foreign inland freight, foreign cold storage, and
international ocean freight from the starting price (or gross unit
price), in accordance with section 772(c) of the Act.
In accordance with section 772(b) of the Act, we used the CEP
methodology when the first sale to an unaffiliated purchaser occurred
after importation of the merchandise into the United States. In this
instance, we calculated CEP for all of QVD's, Cadovimex II's, and Vinh
Hoan's U.S. sales through their respective U.S. affiliates, QVD USA,
Oceanwide, and Vinh Hoan USA to unaffiliated customers.
For QVD's, Cadovimex II's, and Vinh Hoan's CEP sales, we made
adjustments to the gross unit price for billing adjustments, rebates,
foreign inland freight, international freight, foreign cold storage,
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 either
Bangladeshi or Indian surrogate values. See Surrogate Value Memo. Where
applicable, we used the actual reported expense for those movement
expenses provided by ME suppliers and paid for in ME currency.
Bona Fide New Shipper Analysis
Consistent with the Department's practice, we investigated the bona
fide nature of the sales made by SAMEFICO and Cadovimex II for the new
shipper review. In evaluating whether a sale is bona fide, the
Department considers,
[[Page 45810]]
inter alia, such factors as: (1) The timing of the sale; (2) the price
and quantity; (3) the expenses arising from the transaction; (4)
whether the goods were resold at a profit; and (5) whether the
transaction was made on an arms-length basis. We preliminarily find
that the new shipper sales made by SAMEFICO and Cadovimex II are bona
fide transactions. See Memo to the File Through Alex Villanueva,
Program Manager, Office 9 from Alexis Polovina, Case Analyst:
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 Saigon-Mekong Fishery Co., Ltd. and Memo to the File Through
Alex Villanueva, Program Manager, Office 9 from Tim Lord, Case Analyst:
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 Cadovimex II Seafood Import-Export & Processing Joint Stock
Company, dated August 27, 2009. Based on our investigation into the
bona fide nature of the sales, the questionnaire responses submitted by
SAMEFICO and Cadovimex, as well the companies' eligibility for a
separate rate (see ``Separate Rates'' section above), and the
Department's preliminary determination that SAMEFICO and Cadovimex II
were not affiliated with any exporter or producer that had previously
shipped subject merchandise to the United States, we preliminarily
determine that SAMEFICO and Cadovimex II have met the requirements to
qualify as new shippers during the POR. Therefore, for purposes of
these preliminary results of review, we are treating SAMEFICO's and
Cadovimex II's respective sales of subject merchandise to the United
States as appropriate transactions for this new shipper review. We will
continue to evaluate all aspects of SAMEFICO's and Cadovimex II's sales
during the final results.
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
QVD, Vinh Hoan, SAMEFICO, and Cadovimex II, pursuant to sections
773(c)(3) and (4) of the Act and 19 CFR 351.408(c).
As the basis for NV, QVD, Vinh Hoan, SAMEFICO, and Cadovimex II
provided FOPs used in each of the stages for processing frozen fish
fillets. Our general policy, consistent with section 773(c)(1)(B) of
the Act, is to value the FOPs that a respondent uses to produce the
subject merchandise.
To calculate NV, we valued QVD's, Vinh Hoan's, SAMEFICO's, and
Cadovimex II's reported per-unit factor quantities using publicly
available Bangladeshi, Philippine, Indian, and Indonesian surrogate
values. Bangladesh was our first surrogate country source from which to
obtain data to value inputs, and when data was not available from
there, we used Philippine, Indian, or Indonesian sources. In selecting
surrogate values, we considered the quality, specificity, and
contemporaneity of the available values. As appropriate, we adjusted
the value of material inputs to account for delivery costs.
Specifically, we added surrogate freight costs to surrogate values
using the reported distances from the Vietnam port to the Vietnam
factory or from the domestic supplier to the factory, where
appropriate. This adjustment is in accordance with the decision of the
CAFC in Sigma Corp. v. United States, 117 F.3d 1401, 1407-1408 (Fed.
Cir. 1997).
For those values not contemporaneous with the POR, we adjusted for
inflation using data published in the International Monetary Fund's
International Financial Statistics. Import data from South Korea,
Thailand and Indonesia were excluded from the surrogate country import
data due to generally available export subsidies. See China Nat'l Mach.
Import & Export Corp. v. United States, CIT 01-1114, 293 F. Supp. 2d
1334 (CIT 2003), aff'd 104 Fed. Appx. 183 (Fed. Cir. 2004), and Certain
Cut-to-Length Carbon Steel Plate from Romania: Notice of Final Results
and Final Partial Rescission of Antidumping Duty Administrative Review,
70 FR 12651, and accompanying issues and Decision Memorandum at Comment
4 (March 15, 2005). Additionally, we excluded prices from NME countries
and imports that were labeled as originating from an ``unspecified''
Asian country. The Department excluded these imports because it could
not ascertain whether they were from either an NME country or a country
with general export subsidies. We converted the surrogate values to
U.S. dollars as appropriate, using the official exchange rate recorded
on the dates of sale of subject merchandise in this case, obtained from
http://www.ia.ita.doc.gov/exchange/index.html. For further detail, see
Surrogate Values Memo.
Preliminary Results of the Review
As a result of our review, we preliminarily find that the following
margins exist for the period August 1, 2007, through July 31, 2008:
---------------------------------------------------------------------------
\9\ This rate is applicable to the QVD Single Entity which
includes QVD, QVD DT, and Thuan Hung.
Certain Frozen Fish Fillets From Vietnam
------------------------------------------------------------------------
Weighted-
average margin
Manufacturer/exporter (dollars per
kilogram)
------------------------------------------------------------------------
QVD \9\............................................... 0.00
Vinh Hoan............................................. 0.00
Agifish............................................... 0.02
SAMEFICO.............................................. 0.00
Cadovimex II.......................................... 0.00
East Sea.............................................. 0.02
Vietnam-wide Entity................................... 2.11
------------------------------------------------------------------------
Public Comment
The Department will disclose to parties of this proceeding the
calculations performed in reaching the preliminary results within ten
days of the date of announcement of the preliminary results. An
interested party may request a hearing within 30 days of publication of
the preliminary results. See 19 CFR 351.310(c). Interested parties may
submit written comments (case briefs) within 30 days of publication of
the preliminary results and rebuttal comments (rebuttal briefs), which
must be limited to issues raised in the case briefs, within five days
after the time limit for filing case briefs. See 19 CFR
351.309(c)(1)(ii) and 19 CFR 351.309(d). Parties who submit arguments
are requested to submit with the argument: (1) A statement of the
issue; (2) a brief summary of the argument; and (3) a table of
authorities. Further, the Department requests that parties submitting
written comments provide the Department with a diskette containing the
public version of those comments. Unless the deadline is extended
pursuant to section 751(a)(3)(A) of the Act, the Department will issue
the final results of this
[[Page 45811]]
administrative review, including the results of our analysis of the
issues raised by the parties in their comments, within 120 days of
publication of the preliminary results. The assessment of antidumping
duties on entries of merchandise covered by this review and future
deposits of estimated duties shall be based on the final results of
this review.
Assessment Rates
Upon completion of this administrative review, pursuant to 19 CFR
351.212(b), the Department will calculate an assessment rate on all
appropriate entries. For the mandatory respondents, QVD and Vinh Hoan,
and new shippers, SAMEFICO and Cadovimex II, we will calculate
importer-specific duty assessment rates on a per-unit basis.\10\ Where
the assessment rate is de minimis, we will instruct CBP to assess no
duties on all entries of subject merchandise by that importer. We will
instruct CBP to liquidate entries containing merchandise from the PRC-
wide entity at the PRC-wide rate we determine in the final results of
review. We will issue assessment instructions to CBP 15 days after the
date of publication of the final results of review.
---------------------------------------------------------------------------
\10\ We divided the total dumping margins (calculated as the
difference between NV and EP or CEP) for each importer by the total
quantity of subject merchandise sold to that importer during the POR
to calculate a per-unit assessment amount. We will direct CBP to
assess importer-specific assessment rates based on the resulting
per-unit (i.e., per-kilogram) rates by the weight in kilograms of
each entry of the subject merchandise during the POR.
---------------------------------------------------------------------------
Cash Deposit Requirements
The following cash deposit requirements will be effective upon
publication of the final results of this administrative review for all
shipments of the subject merchandise entered, or withdrawn from
warehouse, for consumption on or after the publication date, as
provided for by section 751(a)(2)(C) of the Act: (1) For the exporters
listed above, except for Cadovimex II and SAMEFICO, the cash deposit
rate will be that established in the final results of this review
(except, if the rate is zero or de minimis, the cash deposit will be
zero); (2) for previously investigated or reviewed Vietnam and non-
Vietnam exporters not listed above that have separate rates, the cash
deposit rate will continue to be the exporter-specific rate published
for the most recent period; (3) for all Vietnam exporters of subject
merchandise which have not been found to be entitled to a separate
rate, the cash deposit rate will be the Vietnam-wide rate of $2.11 per
kilogram; and (4) for all non-Vietnam exporters of subject merchandise
which have not received their own rate, the cash deposit rate will be
the rate applicable to the Vietnam exporters that supplied that non-
Vietnam exporter. These deposit requirements, when imposed, shall
remain in effect until further notice.
The following cash deposit requirements will be effective upon
publication of the final results of this review for all shipments of
subject merchandise from new shippers Cadovimex II or SAMEFICO 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 Cadovimex II or
produced and exported by SAMEFICO, the cash deposit rate will be zero;
(2) for subject merchandise exported by Cadovimex II or SAMEFICO but
not manufactured by Cadovimex II or SAMEFICO, 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 Cadovimex II or
SAMEFICO, 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(a)(1) and 777(i)(1) of the Act.
Dated: August 28, 2009.
Ronald K. Lorentzen,
Acting Assistant Secretary for Import Administration.
[FR Doc. E9-21429 Filed 9-3-09; 8:45 am]
BILLING CODE 3510-DS-P