[Federal Register Volume 75, Number 178 (Wednesday, September 15, 2010)]
[Notices]
[Pages 56062-56070]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-23001]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-552-801]
Certain Frozen Fish Fillets From the Socialist Republic of
Vietnam: Notice of Preliminary Results and Partial Rescission of the
Sixth Antidumping Duty Administrative Review and Sixth New Shipper
Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce (``Department'') is conducting an
administrative review and new shipper review of the antidumping duty
order on certain frozen fish fillets from the Socialist Republic of
Vietnam (``Vietnam''). See Notice of Antidumping Duty Order: Certain
Frozen Fish Fillets From the Socialist Republic of Vietnam, 68 FR 47909
(August 12, 2003) (``Order''). The Department has preliminarily
determined that Vinh Hoan Corporation (``Vinh Hoan''),\1\ Vinh Quang
Fisheries Corporation (``Vinh Quang'') and CUU Long Fish Joint Stock
Company (``CL-Fish'') sold subject merchandise at less than normal
value (``NV'') during the period of review (``POR''), August 1, 2008,
through July 31, 2009.
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\1\ The Department is treating Vinh Hoan, Van Duc Food Export
Joint Company (``Van Duc'') and Van Duc Tien Giang (``VD TG'') as a
single entity. Section 351.401(f) of the Department's regulations
define single entities as those affiliated producers who have
production facilities for similar or identical products that would
not require substantial retooling of either facility in order to
restructure manufacturing priorities and the Secretary concludes
that there is a significant potential for the manipulation of price
or production. For further analysis, see Affiliations and Collapsing
section below.
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DATES: Effective Date: September 15, 2010.
FOR FURTHER INFORMATION CONTACT: Emeka Chukwudebe or Javier Barrientos,
AD/CVD Operations, Office 9, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
[[Page 56063]]
Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-
0219 or (202) 482-2243, respectively.
SUPPLEMENTARY INFORMATION:
Case History
On July 31, 2009, pursuant to section 19 CFR 351.214(c), the
Department received a new shipper review request from CL-Fish. On
August 3, 2009, the Department published a notice of an opportunity to
request an administrative review of the Order. See Antidumping or
Countervailing Duty Order, Finding, or Suspended Investigation;
Opportunity To Request Administrative Review, 74 FR 38397 (August 3,
2009). By August 31, 2009, the Department received review requests for
22 companies from Petitioners \2\ and certain individual companies.
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\2\ Catfish Farmers of America and individual U.S. catfish
processors, America's Catch, Consolidated Catfish Companies, LLC dba
Country Select Catfish, Delta Pride Catfish, Inc., Harvest Select
Catfish, Inc., Heartland Catfish Company, Pride of the Pond, and
Simmons Farm Raised Catfish, Inc.
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On September 22, 2009, the Department initiated an antidumping duty
administrative review on frozen fish fillets from Vietnam covering the
period, August 1, 2008, through July 31, 2009. See Initiation of
Antidumping and Countervailing Duty Administrative Reviews and Request
for Revocation in Part, 74 FR 48224 (September 22, 2009) (``Initiation
Notice''). The Department initiated this review with respect to 22
companies.\3\
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\3\ These companies include: (1) An Giang Fisheries Import and
Export Joint Stock Company (aka Agifish or; AnGiang Fisheries Import
and Export); (2) Anvifish Co., Ltd.; (3) Anvifish Joint Stock
Company (``Anvifish JSC''); (4) Asia Commerce Fisheries Joint Stock
Company (aka Acomfish JSC) (``Acomfish''); (5) Binh An Seafood Joint
Stock Co. (``Binh An''); (6) Cadovimex II Seafood Import-Export and
Processing Joint Stock Company; (aka Cadovimex II) (``Cadovimex
II''); (7) CL-Fish; (8) East Sea Seafoods Limited Liability Company
(formerly known as East Sea Seafoods Joint Venture Co., Ltd.) (``ESS
LLC''); (9) East Sea Seafoods Joint Venture Co., Ltd. (``ESS JVC'');
(10) Hiep Thanh Seafood Joint Stock Co. (``Hiep Thanh''); (11) Nam
Viet Company Limited (aka NAVICO) (``NAVICO''); (12) NTSF Seafoods
Joint Stock Company (aka NTSF) (``NTSF''); (13) Panga Mekong Co.,
Ltd. (``Panga Mekong''); (14) QVD Food Company, Ltd. (``QVD''); (15)
QVD Dong Thap Food Co., Ltd. (``QVD DT''); (16) Saigon-Mekong
Fishery Co., Ltd. (aka SAMEFICO) (``SAMEFICO''); (17) Southern
Fishery Industries Company, Ltd. (aka South Vina); (18) Thien Ma
Seafood Co., Ltd. (``Thien Ma''); (19) Thuan Hung Co., Ltd. (aka
THUFICO) (``Thuan Hung''); (20) Vinh Hoan Corporation; (21) Vinh
Hoan Company, Ltd.; and (22) Vinh Quang.
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On September 25, 2009, the Department initiated the sixth
antidumping duty new shipper review covering the same period as the
administrative review. For this POR, the company to be reviewed is CL-
Fish. See Certain Frozen Fish Fillets from the Socialist Republic of
Vietnam: Initiation of New Shipper Review, 74 FR 48908, (September 25,
2009).
On November 10, 2009, the Department issued a letter to all
interested parties informing them of its decision to select as
mandatory respondents QVD and Vinh Hoan, the two largest exporters of
subject merchandise during the POR, based on U.S. Customs and Borders
Protection (``CBP'') import data. See Memorandum to the File from
Javier Barrientos, Senior Analyst, through Alex Villanueva, Program
Manager, Antidumping Duty Administrative Review of Certain Frozen Fish
Fillets from the Socialist Republic of Vietnam (``Vietnam''): Selection
of Respondents for Individual Review (``First Respondent Selection
Memo''), dated November 10, 2009. On January 7, 2010, QVD withdrew its
request for an administrative review. On January 8, 2010, Anvifish JSC
withdrew its request for an administrative review. On January 8, 2010,
Petitioners partially withdrew their August 31, 2009, request for an
administrative review for 13 companies including QVD.\4\ On January 29,
2010, the Department determined to individually examine the voluntary
respondent, Vinh Quang. See Memorandum to the File from Emeka
Chukwudebe, Case Analyst, through Alex Villanueva, Program Manager,
Antidumping Duty Administrative Review of Certain Frozen Fish Fillets
from the Socialist Republic of Vietnam (``Vietnam''): Replacement of
Mandatory Respondent (``Second Respondent Selection Memo''), dated
January 29, 2010.
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\4\ These companies include: (1) Cadovimex II; (2) CL-Fish; (3)
Hiep Thanh; (4) NAVICO; (5) NTSF; (6) Panga Mekong; (7) QVD; (8)
SAMEFICO; (9) Thien Ma; (10) Thuan Hung; (11) Vinh Quang; (12) QVD
DT, and; (13) Anvifish Co., Ltd. However, the Department continued
the administrative review with respect to Vinh Quang as this company
was chosen as a voluntary respondent. See Second Respondent
Selection Memo.
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Between October 13, 2009, and August 12, 2010, new shipper, CL-
Fish, submitted responses to the original sections A, C, and D
questionnaire and supplemental sections A, C, and D questionnaire.
Between November 24, 2009, and August 12, 2010, Vinh Quang submitted
responses to the original sections A, C, and D questionnaires and
supplemental sections A, C, and D questionnaires. Between December 4,
2009, and August 12, 2010, Vinh Hoan submitted responses to the
original sections A, C, and D questionnaires and supplemental sections
A, C, and D questionnaires.
On January 29, 2010, the Department extended the deadline for
parties to file surrogate country comments and surrogate value data.
See Memorandum to the File, from Emeka Chukwudebe, Case Analyst,
through Alex Villanueva, Program Manager, Administrative Review of
Certain Frozen Fish Fillets from the Socialist Republic of Vietnam:
Extension Request for Surrogate Country Selection Comments and
Surrogate Value Submissions, dated January 29, 2010. On February 12,
2010, the Department tolled all administrative deadlines, including
these reviews, by one calendar week. See Tolling of Administrative
Deadlines As a Result of the Government Closure During the Recent
Snowstorm, dated February 12, 2010, (``Tolling Memo''). On March 9,
2010, the Department aligned the sixth new shipper review with the
sixth administrative review. See Memorandum to the File, from Javier
Barrientos, Senior Case Analyst, through Alex Villanueva, Program
Manager, Alignment of 6th New Shipper Review of Certain Frozen Fish
Fillets from the Socialist Republic of Vietnam with the 6th
Administrative Review of Certain Frozen Fish Fillets from the Socialist
Republic of Vietnam, dated March 9, 2010. Between April 2, 2010, and
July 9, 2010, the Department received surrogate country and value
comments and rebuttal comments from interested parties. On April 22,
2010, the Department partially extended the deadline for the
preliminary results in these reviews. See Certain Frozen Fish Fillets
from the Socialist Republic of Vietnam: Extension of Time Limit for
Preliminary Results of the 6th Antidumping Duty Administrative and 6th
New Shipper Reviews, 75 FR 20983 (April 22, 2010).
On May 27, 2010, the Department partially rescinded the
administrative review with respect to 13 companies.\5\ See Certain
Frozen Fish Fillets From the Socialist Republic of Vietnam: Notice of
Partial Rescission of the Sixth Antidumping Duty Administrative Review,
75 FR 29726 (May 27, 2010) (``Partial Rescission Notice''). Therefore,
nine companies remain in this administrative review: (1) Agifish; (2)
Acomfish; (3) Anvifish JSC; \6\ (4) Binh An; (5) East Sea Seafoods
Limited Liability Company (formerly known as East Sea Seafoods Joint
Venture Co.,
[[Page 56064]]
Ltd.); (6) Hiep Thanh; (7) South Vina; (8) Vinh Hoan; and (9) Vinh
Quang.
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\5\ These companies include: (1) Cadovimex II; (2) CL-Fish; (3)
Hiep Thanh; (4) NAVICO; (5) NTSF; (6) Panga Mekong; (7) QVD; (8)
SAMEFICO; (9) Thien Ma; (10) Thuan Hung; (11) Vinh Quang; (12) QVD
DT; and (13) Anvifish Co., Ltd.
\6\ Although the Department noted on January 8, 2010, Anvifish
JSC withdrew its request for an administrative review, in the
Partial Rescission Notice, the Department stated there was no
information on the record indicating Anvifish JSC was assigned a
separate rate.
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On July 16, 2010, Anvifish JSC placed information on the record
identifying its name change in the fourth administrative review from
Anvifish Co., Ltd. to Anvifish JSC. On July 30, 2010, the Department
published in the Federal Register a second notice fully extending the
time period for issuing the preliminary results in these reviews. See
Certain Frozen Fish Fillets From the Socialist Republic of Vietnam:
Extension of Time Limit for Preliminary Results of the 6th Antidumping
Duty Administrative and 6th New Shipper Reviews, 75 FR 44938 (July 30,
2010). The preliminary results are currently due on September 7, 2010,
(inclusive of the seven day extension per the Tolling Memo).
Vietnam-Wide Entity
As discussed above, in this administrative review we limited the
selection of respondents using CBP import data. See First Respondent
Selection Memo at Attachment I. In this case, we made available to the
companies who were not selected, the separate rates application and
certification, which were put on the Department's Web site. See
Initiation Notice. Those companies which did not apply for separate
rates will continue to be part of the Vietnam-wide entity. Because some
parties for which a review was requested did not apply for separate
rate status, the Vietnam-wide entity is considered to be part of this
review.
Preliminary Partial Rescission of Administrative Review
Acomfish and Binh An
Pursuant to 19 CFR 351.213(d)(3), the Department has preliminarily
determined that Acomfish and Binh An made no shipments of subject
merchandise during the POR of this administrative review. On October,
13, 2009, the Department received no-shipment certifications from
Acomfish and Binh An. However, according to entry statistics obtained
from CBP, and placed on the record, Binh An had an entry of subject
merchandise during the POR. In the partial rescission of review notice,
the Department stated that it would address this claim and any possible
rescission in the preliminary results. See Partial Rescission Notice.
On January 13, 2010, the Department issued no-shipment inquiries to
CBP requesting any information for merchandise manufactured and shipped
by either Acomfish or Binh An during the POR. The Department did not
receive any response from CBP, thus indicating that there were no
entries of subject merchandise into the United States exported by these
companies. On May 26, 2010, the Department issued a request for the
complete entry package document for the shipment made by Binh An during
the POR. In addition, on July 9, 2010, the Department issued a
supplemental questionnaire to Binh An requesting additional information
regarding the subject merchandise entered during the POR. On July 15,
2010, Binh An submitted a response stating that the shipment was for
sampling purposes only. Furthermore, our analysis of the CBP entry
package was consistent with Binh An's explanation. The Department
therefore found no record evidence indicating that Binh An received
financial consideration for this transaction. Id.
Consequently, as Acomfish did not export subject merchandise during
the POR, and Binh An's transaction was not considered a sale because it
was a sample transaction for no financial consideration, we are
preliminarily rescinding the review, in part, with respect to Acomfish
and Binh An.
Separate Rates
Agifish, Anvifish Co., Ltd., Vinh Hoan, QVD, South Vina, and CL-Fish
A designation as a non-market economy (``NME'') remains in effect
until it is revoked by the Department. See section 771(18)(C) of the
Tariff Act of 1930, as amended (``the Act''). Accordingly, there is a
rebuttable presumption that all companies within Vietnam are subject to
government control and, thus, should be assessed a single antidumping
duty rate. It is the Department's standard policy to assign all
exporters of the merchandise subject to review in NME countries a
single rate unless an exporter can affirmatively demonstrate an absence
of government control, both in law (de jure) and in fact (de facto),
with respect to exports. To establish whether a company is sufficiently
independent to be entitled to a separate, company-specific rate, the
Department analyzes each exporting entity in an NME country under the
test established in the Final Determination of Sales at Less than Fair
Value: Sparklers from the People's Republic of China, 56 FR 20588 (May
6, 1991) (``Sparklers''), as amplified by the Notice of Final
Determination of Sales at Less Than Fair Value: Silicon Carbide from
the People's Republic of China, 59 FR 22585 (May 2, 1994) (``Silicon
Carbide'').
A. Absence of De Jure Control
The Department considers the following de jure criteria in
determining whether an individual company may be granted a separate
rate: (1) An absence of restrictive stipulations associated with an
individual exporter's business and export licenses; and (2) any
legislative enactments decentralizing control of companies.
Although the Department has previously assigned a separate rate to
all of the companies eligible for a separate rate in the instant
proceeding, it is the Department's policy to evaluate separate rates
questionnaire responses each time a respondent makes a separate rates
claim, regardless of whether the respondent received a separate rate in
the past. See Manganese Metal from the People's Republic of China,
Final Results and Partial Rescission of Antidumping Duty Administrative
Review, 63 FR 12440 (March 13, 1998).
In this review, Agifish, Anvifish Co., Ltd., Vinh Hoan, QVD, and
South Vina submitted complete separate rate certifications and
applications. CL-Fish provided separate rate information in its new
shipper review questionnaire responses. The evidence submitted by these
companies includes government laws and regulations on corporate
ownership, business licenses, and narrative information regarding the
companies' operations and selection of management. The evidence
provided by these companies supports a finding of a de jure absence of
government control over their export activities, based on: (1) An
absence of restrictive stipulations associated with the exporter's
business license; and (2) the legal authority on the record
decentralizing control over the respondents.
B. Absence of De Facto Control
The absence of de facto government control over exports is based on
whether the respondent: (1) Sets its own export prices independent of
the government and other exporters; (2) retains the proceeds from its
export sales and makes independent decisions regarding the disposition
of profits or financing of losses; (3) has the authority to negotiate
and sign contracts and other agreements; and (4) has autonomy from the
government regarding the selection of management. See Silicon Carbide,
59 FR at 22587; Sparklers, 56 FR at 20589; see also Notice of Final
Determination of Sales at Less Than Fair Value: Furfuryl Alcohol from
the People's Republic of China, 60 FR 22544, 22545 (May 8, 1995).
In this review, Agifish, Anvifish Co., Ltd., Vinh Hoan, QVD, South
Vina, and CL-Fish submitted evidence indicating an absence of de facto
government control over their export activities. Specifically, this
evidence indicates
[[Page 56065]]
that: (1) Each company sets its own export prices independent of the
government and without the approval of a government authority; (2) each
company retains the proceeds from its sales and makes independent
decisions regarding the disposition of profits or financing of losses;
(3) each company has a general manager, branch manager or division
manager with the authority to negotiate and bind the company in an
agreement; (4) the general managers are selected by the board of
directors or company employees, and the general managers appoint the
deputy managers and the manager of each department; and (5) there is no
restriction on any of the companies' use of export revenues. Therefore,
the Department preliminarily finds that Agifish, Anvifish Co., Ltd.,
Vinh Hoan, QVD, and South Vina have established that they qualify for
separate rates under the criteria established by Silicon Carbide and
Sparklers.
ESS LLC and ESS JVC
ESS LLC requested an administrative review of its entries and on
November 24, 2009, submitted a separate rates questionnaire response. A
review of CBP data indicated that ESS LLC had no entries during the POR
under its own name; instead all of the entries came in under ESS
JVC.\7\
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\7\ See First Respondent Selection Memo at attachment I.
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In the prior administrative review, ESS LLC claimed it was a
successor-in-interest to ESS JVC. In that review, the Department found
that ESS LLC was not the successor-in-interest to ESS JVC, and as such,
was not entitled to ESS JVC's rate.\8\ This determination was upheld by
the Court of International Trade.\9\ The Department also found that ESS
JVC ceased to exist on July 31, 2008.
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\8\ See Certain Frozen Fish Fillets from the Socialist Republic
of Vietnam: Final Results of the Antidumping Duty Administrative
Review and New Shipper Reviews, 75 FR 12726 (March 17, 2010) (``5th
AR and 4th NSR Final'').
\9\ East Sea Seafoods LLC, v. United States and Catfish Farmers
of America, Court No. 10-00102, Slip Op. 10-62 at 10 (CIT May 27,
2010). ESS LLC has filed a notice of appeal in that case.
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In response to a supplemental questionnaire issued by the
Department, ESS LLC explained that although its name does not appear on
the CBP entry documents as the exporter, it is the entity that made
those sales to the United Stated during the POR. Specifically, ESS LLC
argues that the sales documents (e.g., invoices, payment, etc.) were
issued on behalf of ESS LLC during the POR. See ESS LLC's July 14, 2010
Submissions at 3, Exhibits 6-7. Therefore, record evidence supports a
finding that the POR entries under ESS JVC's name were, in fact, ESS
LLC sales and we will treat them accordingly.
Based on the same analysis described above for the other companies
and ESS LLC's separate rate response, we preliminarily find that ESS
LLC is entitled to a separate rate in this review. Furthermore, we
intend to refer the issue of ESS LLC's claim that the ESS JVC entries
are in fact ESS LLC's entries during the POR to CBP for further
consideration.
Use of Facts Available
Vinh Quang
Section 776(a)(2) of the Tariff Act of 1930, as amended (``the
Act''), provides that, if an interested party: (A) Withholds
information that has been requested by the Department; (B) fails to
provide such information in a timely manner or in the form or manner
requested subject to sections 782(c)(1) and (e) of the Act; (C)
significantly impedes a proceeding under the antidumping statute; or
(D) provides such information but the information cannot be verified,
the Department shall, subject to subsection 782(d) of the Act, use
facts otherwise available in reaching the applicable determination.
On July 13, 2010, in response to a supplemental questionnaire from
the Department, Vinh Quang explained that it could not provide certain
sales to the last unaffiliated U.S. customer because the affiliated
U.S. customer stated that it did not have the records available to
report the data for these U.S. sales. Although Vinh Quang attempted to
collect the information on these sales, it notes that the volume of
these sales was less than one percent of total U.S. sales during the
POR through that affiliate.
For these preliminary results, in accordance with sections
776(a)(2)(B) of the Act, we have determined that the use of neutral
facts available (``FA'') is warranted for Vinh Quang because, even
though it did not report these very limited downstream sales from its
affiliate, the affiliate provided an explanation of why it wasn't able
to link these very limited sales to purchases by the unaffiliated U.S.
customers (i.e., walk-in grocery store customers). See Vinh Quang's
July 13, 2010, submission at 11-12. As partial neutral FA, we will use
the weighted-average margin from the rest of the sales used to
calculate the dumping margin as the margin for the sales observations
in question. See Analysis of the Preliminary Results of the Antidumping
Duty Administrative Review of Certain Frozen Fish Fillets from the
Socialist Republic of Vietnam Vinh Quang Fisheries Corporation (``Vinh
Quang'') dated September 7, 2010.
Rate for Non-Selected Companies
In this review there are three companies that are not presently
selected for individual examination, ESS LLC, South Vina, and Agifish.
The statute and the Department's regulations do not address the
establishment of a rate to be applied to individual companies not
selected for examination where the Department limited its examination
in an administrative review pursuant to section 777A(c)(2) of the Act.
Generally, we have looked to section 735(c)(5) of the Act, which
provides instructions for calculating the all-others rate in an
investigation, for guidance when calculating the rate for respondents
we did not examine in an administrative review. For the exporters
subject to this review that were determined to be eligible for separate
rate status, but were not selected as mandatory respondents, the
Department generally weight-averages the rates calculated for the
mandatory respondents, excluding any rates that are zero, de minimis,
or based entirely on FA.\10\
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\10\ See, e.g., Wooden Bedroom Furniture From the People's
Republic of China: Preliminary Results of Antidumping Duty
Administrative Review, Preliminary Results of New Shipper Review and
Partial Rescission of Administrative Review, 73 FR 8273, 8279
(February 13, 2008) (unchanged in Wooden Bedroom Furniture from the
People's Republic of China: Final Results of Antidumping Duty
Administrative Review and New Shipper Review, 73 FR 49162 (August
20, 2008)).
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For this administrative review, the Department has calculated
positive margins for both the single mandatory respondent, Vinh Hoan,
and the voluntary respondent, Vinh Quang. However, it is the
Department's practice to only include the rates calculated for the
mandatory respondents when calculating the separate rate for exporters
determined to be eligible for separate rate status.\11\ Accordingly,
consistent with our practice for these preliminary results, the
Department has preliminarily established a margin for the separate rate
respondents based on the rate calculated for the single mandatory
respondent, Vinh Hoan. The rate established for the separate rate
respondents is a per-unit rate of $4.22 dollars per kilogram. Entities
receiving this rate are identified by name in the ``Preliminary Results
of Review'' section of this notice.
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\11\ See Id.
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Scope of the Order
The product covered by this Order is frozen fish fillets, including
regular, shank, and strip fillets and portions
[[Page 56066]]
thereof, whether or not breaded or marinated, of the species Pangasius
Bocourti, Pangasius Hypophthalmus (also known as Pangasius Pangasius),
and Pangasius Micronemus. Frozen fish fillets are lengthwise cuts of
whole fish. The fillet products covered by the scope include boneless
fillets with the belly flap intact (``regular'' fillets), boneless
fillets with the belly flap removed (``shank'' fillets), boneless shank
fillets cut into strips (``fillet strips/finger''), which include
fillets cut into strips, chunks, blocks, skewers, or any other shape.
Specifically excluded from the scope are frozen whole fish (whether or
not dressed), frozen steaks, and frozen belly-flap nuggets. Frozen
whole dressed fish are deheaded, skinned, and eviscerated. Steaks are
bone-in, cross-section cuts of dressed fish. Nuggets are the belly-
flaps. The subject merchandise will be hereinafter referred to as
frozen ``basa'' and ``tra'' fillets, which are the Vietnamese common
names for these species of fish. These products are classifiable under
tariff article codes 1604.19.4000, 1604.19.5000, 0305.59.4000,
0304.29.6033 (Frozen Fish Fillets of the species Pangasius including
basa and tra) of the Harmonized Tariff Schedule of the United States
(``HTSUS'').\12\ This Order covers all frozen fish fillets meeting the
above specification, regardless of tariff classification. Although the
HTSUS subheading is provided for convenience and customs purposes, our
written description of the scope of the Order is dispositive.
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\12\ Until July 1, 2004, these products were classifiable under
tariff article codes 0304.20.60.30 (Frozen Catfish Fillets),
0304.20.60.96 (Frozen Fish Fillets, NESOI), 0304.20.60.43 (Frozen
Freshwater Fish Fillets) and 0304.20.60.57 (Frozen Sole Fillets) of
the HTSUS. Until February 1, 2007, these products were classifiable
under tariff article code 0304.20.60.33 (Frozen Fish Fillets of the
species Pangasius including basa and tra) of the HTSUS.
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Non-Market Economy Country Status
In every case conducted by the Department involving Vietnam,
Vietnam has been treated as a NME country. In accordance with section
771(18)(C)(i) of the Act (``the Act''), any determination that a
foreign country is an NME country shall remain in effect until revoked
by the administering authority. See Notice of Final Results of
Administrative Review: Certain Frozen Fish Fillets from the Socialist
Republic of Vietnam, 73 FR 15479 (March 17, 2008) and accompanying
Issues and Decision Memorandum (``3rd AR Final Results''). None of the
parties to this proceeding have contested such treatment. Accordingly,
we calculated NV in accordance with section 773(c) of the Act, which
applies to NME countries.
Surrogate Country and Surrogate Values
On December 18, 2009, the Department sent interested parties a
letter setting a deadline to submit comments on surrogate country
selection and information pertaining to valuing factors of production
(``FOPs''). Between April, 8, 2010, and August 16, 2010, Vinh Hoan, CL-
Fish, the Vietnam Association of Seafood Exporters and Producers
(``VASEP''), and/or Petitioners submitted surrogate country comments,
surrogate value data and rebuttal comments.
Surrogate Country
When the Department is investigating imports from an NME country,
section 773(c)(1) of the Act directs it to base NV, in most
circumstances, on the NME producer's FOPs, valued in a surrogate market
economy country or countries considered to be appropriate by the
Department. In accordance with section 773(c)(4) of the Act, in valuing
the FOPs, the Department shall utilize, to the extent possible, the
prices or costs of FOPs in one or more market economy countries that
are: (1) At a level of economic development comparable to that of the
NME country; and (2) significant producers of comparable merchandise.
The Department determined that Bangladesh, Pakistan, India, Sri
Lanka, the Philippines and Indonesia are countries comparable to
Vietnam in terms of economic development.\13\
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\13\ See Memorandum from Kelley Parkhill, Acting Director,
Office of Policy, to Alex Villanueva, Program Manager, AD/CVD
Enforcement, Office 9: Request for a list of Surrogate Countries for
a New Shipper Review of the Antidumping Duty Order on Certain Frozen
Fish Fillets (``Fish Fillets'') from the Socialist Republic of
Vietnam, dated October 15, 2009.
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As we have stated in prior administrative review determinations,
there is no world production data of Pangasius frozen fish fillets
available on the record with which the Department can identify
producers of identical merchandise. Therefore, absent world production
data, the Department's practice is to compare, wherever possible, data
for comparable merchandise and establish whether any economically
comparable country was a significant producer.\14\ In this case, we
have determined to use the broader category of frozen fish fillets data
as the basis for identifying producers of comparable merchandise.
Therefore, consistent with cases that have similar circumstances as are
present here, we obtained export data for each country identified in
the surrogate country list. Based on export data from U.N. Comtrade in
2007,\15\ Bangladesh, the Philippines, Indonesia, India, Sri Lanka, and
Pakistan are exporters of frozen fish fillets, and, thus, significant
producers.
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\14\ See Certain Magnesia Carbon Bricks From the People's
Republic of China: Preliminary Determination of Sales at Less Than
Fair Value and Postponement of Final Determination, 75 FR 11847
(March 12, 2010), unchanged for the final determination, 75 FR 45468
(August 2, 2010).
\15\ U.N. Comtrade data from 2006 and 2007 are the only years in
which all countries have data for comparison. 2008 and 2009 data
contains gaps preventing the Department from making appropriate
comparisons. World Trade Atlas data shares a similar problem. See
Surrogate Value Memo at Attachment I.
---------------------------------------------------------------------------
After applying the first two selection criteria, if more than one
country remains, it is the Department's practice to select an
appropriate surrogate country based on the availability and reliability
of data from those countries. See Department Policy Bulletin No. 04.1:
Non-Market Economy Surrogate Country Selection Process (March 1, 2004)
(``Surrogate Country Policy Bulletin''). In this case, the whole fish
input is the most significant input because it accounts for the largest
percentage of normal value (``NV'') as fish fillets are produced
directly from the whole live fish. As such, we must consider the
availability and reliability of the surrogate values for whole fish on
the record. This record does not contain any data for whole live fish
for Indonesia, India, Sri Lanka, and Pakistan. Therefore, these
countries will not be considered for primary surrogate country purposes
at this time. However, this record does contain whole fish surrogate
value data from both Bangladesh and the Philippines.
Bangladesh
In the most recently completed segment involving a new shipper
review, the Department selected Bangladesh as the surrogate country due
to the superior quality of the Bangladeshi data available in the
Economics of Aquaculture Feeding Practices in Selected Asian Countries:
FAO Technical Paper 505 (Rome, 2007) (``FAO Report''). See Certain
Frozen Fish Fillets from the Socialist Republic of Vietnam, Final
Results of Fifth New Shipper Review, 75 38985 (July 7, 2010) and
accompanying Issues and Decision Memorandum at Comment 1 (``5th NSR
Final''). In the 5th NSR Final, we found that the whole fish input data
from the FAO Report were the best information available to value the
fish input because they satisfied the surrogate value selection
criteria (e.g., are publicly
[[Page 56067]]
available, represent a broad market average, are from an approved
surrogate country, are specific to the input in question and are tax
exclusive),\16\ even though they are not contemporaneous with the POR.
The information on this record with respect to the FAO Report data
remains unchanged from the prior new shipper review.
---------------------------------------------------------------------------
\16\ See e.g., Fresh Garlic from the People's Republic of China:
Final Results and Final Rescission, In Part, of New Shipper Reviews,
74 FR 50952 (October 2, 2009), and accompanying Issues and Decision
Memorandum at Comment 5; see also Third Administrative Review of
Frozen Warmwater Shrimp From the People's Republic of China: Final
Results and Partial Rescission of Antidumping Duty Administrative
Review, 74 FR 46565 (September 10, 2009), and accompanying Issues
and Decision Memorandum at Comment 3.
---------------------------------------------------------------------------
The Philippines
In the fifth administrative review and fourth new shipper reviews,
the Department was concerned with the public availability of the whole
fish surrogate data from the Philippines. See 5th AR Final at Comment
1. Subsequent to that segment, the Department again evaluated the
public availability of the Philippines data and found that although
Petitioners supplemented the record with additional information and
documentation, serious concerns remained (e.g., not an official
government publication in and of itself, an affidavit not made on
behalf of the Philippines government, no discussion of public
dissemination, etc.).\17\ On the record of this review however,
Petitioners submitted information clearly generated by a Philippine
government agency, on official Philippines government letterhead, and
with an explanation of the data collection methods. In addition, they
provided a complete copy of the Fisheries Statistics of the
Philippines, 2006-2008, published by the Bureau of Agricultural
Statistics, Department of Agriculture, (``Fisheries Statistics'')
published in November 2009, which links the Philippines data provided
in this and prior segments to an official Philippines government
publication. Therefore, the Department no longer has concerns with the
public availability of the Philippines data in this segment.
---------------------------------------------------------------------------
\17\ In the most recently completed segment, we stated that ``In
analyzing the Fish Pond Report, the Department has serious concerns
about the public availability of the data. By Petitioners' own
admission, the data are not published as the Fish Pond Report per
se, but rather, the Fish Pond Report represents source data to be
used in a yet-to-be-determined manner for official publication in
the Fisheries Situationer. Therefore, the Fish Pond Report is not an
official government publication in and of itself, nor is it even an
interim government publication. Accordingly, we do not find the Fish
Pond Report to be public information. Moreover, we find our concerns
in this regard amplified by the observation that the affidavit is
not made on behalf of the Philippine government, further
underscoring our concerns about the public availability of this
information.* * *
Furthermore, the document has a hand written title and appears
to be incomplete in some of the data fields as discussed below.
There is no mention in the affidavit that the data is regularly
disseminated in the Fish Pond Report format or whether the affiant
is responsible for providing this data to the public. There is no
explanation as to whether the affiant provides this data as a
regular part of her government job, reducing the likelihood the data
as released were subject to the ordinary review and analysis
accompanying their inclusion in the Fisheries Situationer. Given
these concerns, the Department does not find that this data is
publicly available.'' See 5th NSR Final at Comment 1.
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Analysis
First, we note that both the FAO Report data and the Fisheries
Statistics data are publicly available, tax- and duty-exclusive, and
from an approved surrogate country. Therefore, we examined each source
with respect to the broad market average, specificity, and
contemporaneity. With respect to the broad market average, we find that
the data from both the FAO Report and the Fisheries Statistics are
considered broad market averages. As we have stated in prior reviews,
the FAO Report data were obtained directly from 60 fish farmers from a
region that produces fish in Bangladesh. However, the FAO Report does
state why this particular region was selected (i.e., importance of this
region in Pangas farming, the availability of hatchery produced fry,
availability of ponds, warm climate, cheap and abundant labor). See FAO
Report at 38. Similarly, the Philippines data were collected from 34
respondents (i.e., ``farmers, operators, or caretakers. Other possible
respondents are aqua farm traders and persons knowledgeable of
aquaculture production in the locality.'') See Petitioners' July 9,
2010 Submission at Attachment 1, page 2. Although we recognize that the
Philippines data volume is only 12 metric tons, while the Bangladeshi
data is 178 metric tons, for these preliminary results, we find that
both of these sources are significant broad market averages because
they represent national level data of similar quality using similar
collection methods (i.e., interviews, questionnaires, etc.).
With respect to specificity, the Bangladeshi data in the FAO Report
specifically identify the whole live fish examined as Pangasianodon
Hypopthalmus, which is one of the fish fillets species identified in
the scope of the Order. The Philippines data in the Fisheries
Statistics are identified as Pangasius, which is the genus name for the
fish fillets subject to the Order. First, we note that Pangasius is a
genus name and Pangasianodon Hypopthalmus is a species in that genus.
In prior reviews, we used whole fish surrogate value data identified as
Pangas and found it comparable to the fish input used by Respondents.
See 3rd AR Final Results at Comment 4. In this case, although the whole
fish data from Bangladesh are more specific to the input used by the
Respondents in producing fish fillets, we note that the record does not
contain any information that would lead us to preliminarily determine
that any difference between the two sources would necessarily generate
a difference in price. Moreover, Pangasianodon Hypopthalmus is
considered a component of Pangasius so it is reasonable to find that
the Pangasius price from the Philippines in the Fisheries Statistics is
likely to include Pangasianodon Hypopthalmus and other comparable
species names also listed in the Order.
Finally, with respect to contemporaneity, we find that the
Philippine data are contemporaneous with the POR as they are based on
data collected in calendar year 2008. See Petitioners' July 9, 2010
Submission at Attachment 1, page 3. The Bangladeshi data in the FAO
Report are from calendar year 2005. Therefore, the Philippines data are
contemporaneous with the POR, while the Bangladeshi data are not.
After examining all the factors considered in selecting the
surrogate value for fish as part of our surrogate country analysis, we
find that the data available from the Philippines for the whole live
fish represent the best surrogate values for these preliminary results.
Given that Philippines data are contemporaneous, as equally a broad
market average as the Bangladeshi data and of a similar genus of the
fish used by the Respondents to produce fish fillets, we preliminarily
select the Philippines as the most appropriate surrogate country.
However, we hereby invite parties to submit additional comments and
data from Bangladesh and the Philippines with respect to fish farming
and fisheries that can be considered for the final results.
Affiliations and Collapsing
Section 771 (33) of the Act provides that:
The following persons shall be considered to be `affiliated' or
`affiliated persons':
(A) Members of a family, including brothers and sisters (whether
by the whole or half blood), spouse, ancestors, and lineal
descendants;
(B) Any officer of director of an organization and such
organization;
(C) Partners;
(D) Employer and employee;
[[Page 56068]]
(E) Any person directly or indirectly owning, controlling, or
holding with power to vote, 5 percent or more of the outstanding
voting stock or shares of any organization and such organization;
(F) Two or more persons directly or indirectly controlling,
controlled by, or under common control with, any person;
(G) Any person who controls any other person and such other
person.
Additionally, section 771 (33) of the Act stipulates that: ``For
purposes of this paragraph, a person shall be considered to control
another person if the person is legally or operationally in a position
to exercise restrain or direction over the other person.''
Finally, according to 19 CFR 351.401(f)(1) and (2), two or more
companies may be treated as a single entity for antidumping duty
purposes if: (1) The producers are affiliated, (2) the producers have
production facilities for similar or identical products that would not
require substantial retooling of either facility in order to
restructure manufacturing priorities, and (3) there is a significant
potential for manipulation of price or production. See 19 CFR
351.401(f)(1) and (2).
Vinh Hoan
In the final results of the fifth antidumping duty administrative
review, the Department determined that Vinh Hoan and Van Duc Food
Export Joint Company (``Van Duc'') should be treated as a single
entity. See 5th AR Final, and accompanying Issues and Decision
Memorandum at Comment 4. The Department did not collapse Vinh Hoan Feed
1 Company (``Vinh Hoan Feed'') with these other companies, however,
because Vinh Hoan Feed lacked a critical capital component (freezing
machines) in order to produce comparable merchandise. Id.
Based on evidence submitted by Vinh Hoan in this administrative
review, the Department finds that Vinh Hoan is affiliated with Vinh
Hoan Feed, Vinh Hoan USA, Van Duc, and another entity, Van Duc Tien
Giang (``VD TG'') pursuant to section 771 (33) of the Act. See Vinh
Hoan's March 2, 2010, submission at 2-8. Furthermore, based on evidence
on the record, the Department preliminarily finds that Vinh Hoan, Van
Duc, and VD TG should be treated as a single entity for purposes of
this administrative review. See 19 CFR 351.401(f)(1) and (2). All three
companies have the ability to produce and/or export subject
merchandise. Furthermore, the companies are under the common control of
Ms. Truong and her family by virtue of ownership, common board members
or managers. As such, there is significant potential for manipulation
of price or production. The Department still determines, however, that
Vinh Hoan Feed lacks the critical capital component (freezing machines)
in order to produce comparable merchandise. Therefore, pursuant to 19
CFR 351.401(f)(1) and (2), the Department preliminary finds that Vinh
Hoan, Van Duc, and VD TG but not Vinh Hoan Feed, should be treated as a
single entity (collectively, the ``Vinh Hoan Group'') in these
preliminary results.
Vinh Quang
With regard to Vinh Quang, the Department preliminarily finds that
Vinh Quang is affiliated with the following customers that resold the
subject merchandise in the United States: (1) H&N Foods International
(``H&N''); (2) Blue River Seafood Inc. (``Blue River'') (dba Joe Pucci
& Sons (``Pucci'')); (3) Expack Seafoods, Inc. (``Expack''); and, (4)
Clemente Seafood Center, Inc. (``Clemente'') (collectively ``CEP
Entities''). The Department also finds Vinh Quang to be affiliated with
H&N, Blue River/Pucci and Clemente under Section 771(33)(A) of the Act
because members of the Lam Family \18\ own directly or indirectly (with
their husbands) the majority of these entities and are in a position to
control them. See Vinh Quang July 13, 2010, submission at 2-9. Finally,
the Department determines that Expack is affiliated with H&N (and
indirectly to Vinh Quang) under 771(33)(E) and (F) of the Act because
H&N is the majority owner of Expack and because the Lam Family members
(one of the Lam sisters, her husband and children) are in a position to
directly or indirectly control Expack. Id.
---------------------------------------------------------------------------
\18\ These individuals include Quang Lam and his three blood
sisters and their children.
---------------------------------------------------------------------------
Therefore, for these preliminary results the Department will use
the constructed export price (``CEP'') price paid to H&N, Blue River/
Pucci, and Expack by their first unaffiliated U.S. customers of subject
merchandise during the POR. For Clemente, please see Facts Available
section below.
Fair Value Comparisons
To determine whether sales of the subject merchandise made by Vinh
Hoan, Vinh Quang or CL-Fish to the United States were at prices below
NV, we compared each company's export price (``EP'') or CEP, where
appropriate, to NV, as described below.
U.S. Price
For Vinh Hoan's and CL-Fish's EP sales, we used the EP methodology,
pursuant to section 772(a) of the Act, because the first sale to an
unaffiliated purchaser was made prior to importation and CEP was not
otherwise warranted by the facts on the record. We calculated EP based
on the free-on-board foreign port price to the first unaffiliated
purchaser in the United States. For the EP sales, we also deducted
foreign inland freight, foreign cold storage, foreign brokerage and
handling, foreign containerization, and international ocean freight
from the starting price (or gross unit price), in accordance with
section 772(c) of the Act.
In accordance with section 772(b) of the Act, we used the CEP
methodology when the first sale to an unaffiliated purchaser occurred
after importation of the merchandise into the United States. In this
instance, we calculated CEP for Vinh Hoan's and Vinh Quang's U.S. sales
through its respective U.S. affiliates, Vinh Hoan USA and the Vinh
Quang's CEP Entities, respectively, to unaffiliated customers.
For Vinh Hoan's and Vinh Quang's CEP sales, we made adjustments to
the gross unit price, where applicable, for billing adjustments,
rebates, foreign inland freight, international freight, foreign cold
storage, foreign containerization, foreign brokerage and handling, U.S.
marine insurance, U.S. inland freight, U.S. warehousing, U.S. inland
insurance, other U.S. transportation expenses, and U.S. customs duties.
In accordance with section 772(d)(1) of the Act, we also deducted those
selling expenses associated with economic activities occurring in the
United States, including commissions, credit expenses, advertising
expenses, indirect selling expenses, inventory carrying costs, and U.S.
re-packing costs. We also made an adjustment for profit in accordance
with section 772(d)(3) of the Act.
Where movement expenses were provided by NME-service providers or
paid for in NME currency, we valued these services using surrogate
values from Descartes Carrier Rate Retrieval Database (``Descartes'')
Web site. See Surrogate Value Memo. Where applicable, we used the
actual reported expense for those movement expenses provided by ME
suppliers and paid for in ME currency.
New Shipper Review Bona Fide Analysis
Consistent with the Department's practice, we investigated the bona
fide nature of the sales made by CL-Fish in the new shipper review. We
found that the new shipper sales by CL-Fish were
[[Page 56069]]
made on a bona fide basis.\19\ Based on our investigation into the bona
fide nature of the sales, the questionnaire responses submitted by CL-
Fish, as well as the company's eligibility for separate rates (see
Separate Rates Determination section above), we preliminarily determine
that CL-Fish has met the requirements to qualify as a new shipper
during this POR. Therefore, for the purposes of these preliminary
results of review, we are treating CL-Fish's sales of subject
merchandise to the United States as appropriate transactions for this
new shipper review.
---------------------------------------------------------------------------
\19\ See Memorandum from Javier Barrientos, Case Analyst, Office
9, through Alex Villanueva, Program Manager, Office 9: Bona Fide
Nature of the Sales in the Antidumping Duty New Shipper Review of
Certain Frozen Fish Fillets from the Socialist Republic of Vietnam:
Cuu Long Fish Joint Stock Company, dated September 7, 2010.
---------------------------------------------------------------------------
Normal Value
Section 773(c)(1) of the Act provides that, in the case of an NME,
the Department shall determine NV using an FOP methodology if the
merchandise is exported from an NME and the information does not permit
the calculation of NV using home-market prices, third-country prices,
or constructed value under section 773(a) of the Act. Because
information on the record does not permit the calculation of NV using
home-market prices, third-country prices, or constructed value and no
party has argued otherwise, we calculated NV based on FOPs reported by
Vinh Hoan, Vinh Quang, and CL-Fish, pursuant to sections 773(c)(3) and
(4) of the Act and 19 CFR 351.408(c).
As the basis for NV, Vinh Hoan, Vinh Quang, and CL-Fish provided
FOPs used in each of the stages for processing frozen fish fillets. The
Department's general policy, consistent with section 773(c)(1)(B) of
the Act, is to value the FOPs that a respondent uses to produce the
subject merchandise.
To calculate NV, the Department valued Vinh Hoan's, Vinh Quang's,
and CL-Fish's reported per-unit factor quantities using publicly
available Philippine, Bangladeshi, Indian, and Indonesian surrogate
values. The Philippines was our first surrogate country source from
which to obtain data to value inputs, and when data were not available
from there, we used Bangladeshi, Indian, or Indonesian sources. In
selecting surrogate values, we considered the quality, specificity, and
contemporaneity of the available values. As appropriate, we adjusted
the value of material inputs to account for delivery costs.
Specifically, we added surrogate freight costs to surrogate values
using the reported distances from the Vietnam port to the Vietnam
factory or from the domestic supplier to the factory, where
appropriate. This adjustment is in accordance with the decision of the
CAFC in Sigma Corp. v. United States, 117 F.3d 1401, 1407-1408 (Fed.
Cir. 1997). For those values not contemporaneous with the POR, we
adjusted for inflation using data published in the International
Monetary Fund's International Financial Statistics.
In accordance with the OTCA 1988 legislative history, the
Department continues to apply its long-standing practice of
disregarding surrogate values if it has a reason to believe or suspect
the source data may be subsidized.\20\ In this regard, the Department
has previously found that it is appropriate to disregard such prices
from India, Indonesia, South Korea and Thailand because we have
determined that these countries maintain broadly available, non-
industry specific export subsidies.\21\ Based on the existence of these
subsidy programs that were generally available to all exporters and
producers in these countries at the time of the POR, the Department
finds that it is reasonable to infer that all exporters from India,
Indonesia, South Korea and Thailand may have benefitted from these
subsidies.
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\20\ See Omnibus Trade and Competitiveness Act of 1988, Conf.
Report to Accompany H.R. 3, H.R. Rep. No. 576, 100th Cong., 2nd
Sess. (1988) (``OTCA 1988'') at 590.
\21\ See, e.g., Expedited Sunset Review of the Countervailing
Duty Order on Carbazole Violet Pigment 23 from India, 75 FR 13257
(March 19, 2010) and accompanying Issues and Decision Memorandum at
pages 4-5; Expedited Sunset Review of the Countervailing Duty Order
on Certain Cut-to-Length Carbon Quality Steel Plate from Indonesia,
70 FR 45692 (August 8, 2005) and accompanying Issues and Decision
Memorandum at page 4; See Corrosion-Resistant Carbon Steel Flat
Products from the Republic of Korea: Final Results of Countervailing
Duty Administrative Review, 74 FR 2512 (January 15, 2009) and
accompanying Issues and Decision Memorandum at pages 17, 19-20; See
Certain Hot-Rolled Carbon Steel Flat Products from Thailand: Final
Results of Countervailing Duty Determination, 66 FR 50410 (October
3, 2001) and accompanying Issues and Decision Memorandum at page 23.
---------------------------------------------------------------------------
Additionally, we disregarded prices from NME countries. Finally,
imports that were labeled as originating from an ``unspecified''
country were excluded from the average value, because the Department
could not be certain that they were not from either an NME country or a
country with general export subsidies. For further detail, see
Surrogate Values Memo.
As a consequence of the CAFC's ruling in Dorbest II,\22\ the
Department is no longer relying on the regression-based wage rate
described in 19 CFR 351.408(c)(3). The Department is continuing to
evaluate options for determining labor values in light of the recent
CAFC decision. For these preliminary results, we have calculated an
hourly wage rate to use in valuing the reported labor input by
averaging earnings and/or wages in countries that are economically
comparable to Vietnam and that are significant producers of comparable
merchandise. For further information on the calculation of the wage
rate, please see the Surrogate Value Memo.
---------------------------------------------------------------------------
\22\ See Dorbest Ltd. v. United States, 604 F.3d 1363 (CAFC
2010).
---------------------------------------------------------------------------
Currency Conversion
Where necessary, the Department made currency conversions into U.S.
dollars, in accordance with section 773A(a) of the Act, based on the
exchange rates in effect on the dates of the U.S. sales, as certified
by the Federal Reserve Bank.
Preliminary Results of the Review
As a result of our review, we preliminarily find that the following
margins exist for the period August 1, 2008, through July 31, 2009.
Certain Frozen Fish Fillets From Vietnam
------------------------------------------------------------------------
Weighted-average
Manufacturer/Exporter margin (Dollars
per kilogram)
------------------------------------------------------------------------
(1) Vinh Hoan \23\.................................... 4.22
(2) Vinh Quang........................................ 2.44
(3) Agifish........................................... 4.22
(4) ESS LLC........................................... 4.22
(5) South Vina........................................ 4.22
Vietnam-Wide Rate \24\................................ 2.11
------------------------------------------------------------------------
As a result of the new-shipper review, the Department preliminarily
determines that a weighted-average dumping margin of $0.93 per kilogram
exists for merchandise produced and exported by CL-Fish for the period
August 1, 2008, through July 31, 2009.
---------------------------------------------------------------------------
\23\ This rate is applicable to the Vinh Hoan Group which
includes Vinh Hoan, Van Duc, and VD TG.
\24\ This rate is applicable to Anvifish JSC.
---------------------------------------------------------------------------
With respect to Anvifish JSC, although there is now evidence on the
record of this review that Anvifish Co., Ltd. underwent a name change
to become Anvifish JSC during the fourth administrative review,\25\
there is still insufficient information to determine if Anvifish JSC is
in fact the successor in interest to Anvifish Co., Ltd. Therefore, the
Department will issue a post-preliminary supplemental questionnaire
[[Page 56070]]
to determine if Anvifish JSC is the successor to Anvifish Co., Ltd. and
if Anvifish JSC is entitled to use the rate assigned to Anvifish Co.,
Ltd. Until the Department determines otherwise, Anvifish JSC will
remain part of the Vietnam-wide entity.
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\25\ See Anvifish JSC's submission, dated July 16, 2010.
---------------------------------------------------------------------------
Public Comment
The Department will disclose to parties of this proceeding the
calculations performed in reaching the preliminary results within five
days of the date of announcement of the preliminary results. See 19 CFR
351.224(b). An interested party may request a hearing within 30 days of
publication of the preliminary results. See 19 CFR 351.310(c).
Interested parties may submit written comments (case briefs) within 30
days of publication of the preliminary results and rebuttal comments
(rebuttal briefs), which must be limited to issues raised in the case
briefs, within five days after the time limit for filing case briefs.
See 19 CFR 351.309(c)(1)(ii) and 19 CFR 351.309(d). Parties who submit
arguments are requested to submit with the argument: (1) A statement of
the issue; (2) a brief summary of the argument; and (3) a table of
authorities. Further, the Department requests that parties submitting
written comments provide the Department with a diskette containing the
public version of those comments. Unless the deadline is extended
pursuant to section 751(a)(3)(A) of the Act, the Department will issue
the final results of this administrative review, including the results
of our analysis of the issues raised by the parties in their comments,
within 120 days of publication of the preliminary results. The
assessment of antidumping duties on entries of merchandise covered by
this review and future deposits of estimated duties shall be based on
the final results of this review.
Assessment Rates
Upon completion of this administrative review, pursuant to 19 CFR
351.212(b), the Department will calculate an assessment rate on all
appropriate entries. For the mandatory respondents, Vinh Hoan and Vinh
Quang, and new shipper, CL-Fish, we will calculate importer-specific
duty assessment rates on a per-unit basis.\26\ Where the assessment
rate is de minimis, we will instruct CBP to assess no duties on all
entries of subject merchandise by that importer. We will instruct CBP
to liquidate entries containing merchandise from the Vietnam-wide
entity at the Vietnam-wide rate we determine in the final results of
review. We intend to issue assessment instructions to CBP 15 days after
the date of publication of the final results of review.
---------------------------------------------------------------------------
\26\ We divided the total dumping margins (calculated as the
difference between NV and EP or CEP) for each importer by the total
quantity of subject merchandise sold to that importer during the POR
to calculate a per-unit assessment amount. We will direct CBP to
assess importer-specific assessment rates based on the resulting
per-unit (i.e., per-kilogram) rates by the weight in kilograms of
each entry of the subject merchandise during the POR.
---------------------------------------------------------------------------
Cash Deposit Requirements
The following cash deposit requirements will be effective upon
publication of the final results of this administrative review for all
shipments of the subject merchandise entered, or withdrawn from
warehouse, for consumption on or after the publication date, as
provided for by section 751(a)(2)(C) of the Act: (1) For the exporters
listed above, except for CL-Fish (see below), the cash deposit rate
will be that established in the final results of this review (except,
if the rate is zero or de minimis, the cash deposit will be zero); (2)
for previously investigated or reviewed Vietnam and non-Vietnam
exporters not listed above that have separate rates, the cash deposit
rate will continue to be the exporter-specific rate published for the
most recent period; (3) for all Vietnam exporters of subject
merchandise which have not been found to be entitled to a separate
rate, the cash deposit rate will be the Vietnam-wide rate of $2.11 per
kilogram; and (4) for all non-Vietnam exporters of subject merchandise
which have not received their own rate, the cash deposit rate will be
the rate applicable to the Vietnam exporters that supplied that non-
Vietnam exporter. These deposit requirements, when imposed, shall
remain in effect until further notice.
The following cash deposit requirements will be effective upon
publication of the final results of this review for all shipments of
subject merchandise from new shipper CL-Fish entered, or withdrawn from
warehouse, for consumption on or after the publication date, as
provided for by section 751(a)(2)(C) of the Act: (1) For subject
merchandise produced and exported by CL-Fish, the cash deposit rate
will be the rate established in the final results; (2) for subject
merchandise exported by CL-Fish but not manufactured by CL-Fish, the
cash deposit rate will continue to be the Vietnam-wide rate (i.e.,
$2.11 per kilogram); and (3) for subject merchandise manufactured by
CL-Fish, but exported by any other party, the cash deposit rate will be
the rate applicable to the exporter. If the cash deposit rate
calculated in the final results is zero or de minimis, no cash deposit
will be required where CL-Fish is the exporter and manufacturer. These
cash deposit requirements, when imposed, shall remain in effect until
further notice.
Notification to Interested Parties
This notice serves as a preliminary reminder to importers of their
responsibility under 19 CFR 351.402(f)(2) to file a certificate
regarding the reimbursement of antidumping duties prior to liquidation
of the relevant entries during this POR. Failure to comply with this
requirement could result in the Secretary's presumption that
reimbursement of antidumping duties occurred and the subsequent
assessment of double antidumping duties.
We are issuing and publishing this determination in accordance with
sections 751(a)(1) and 777(i)(1) of the Act.
Dated: September 7, 2010.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 2010-23001 Filed 9-14-10; 8:45 am]
BILLING CODE 3510-DS-P