[Federal Register: September 8, 2008 (Volume 73, Number 174)]
[Notices]
[Page 52015-52021]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08se08-35]
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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 the New Shipper Review and
Fourth Antidumping Duty Administrative Review and Partial Rescission of
the Fourth Administrative Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce (``Department'') is conducting an
administrative review of the antidumping duty order on certain frozen
fish fillets from the Socialist Republic of Vietnam (``Vietnam''). 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'')
and Binh An Seafood Joint Stock Co. (``Binh An'') did not sell subject
merchandise at less than normal value (``NV'') during the period of
review (``POR''), August 1, 2006, through July 31, 2007.
DATES: Effective Date: September 8, 2008.
FOR FURTHER INFORMATION CONTACT: Alan Ray (QVD) and Matthew Renkey
[[Page 52016]]
(Binh An), 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 and (202) 482-2312, respectively.
SUPPLEMENTARY INFORMATION:
Case History
On August 2, 2007, 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, 72 FR
42383 (August 2, 2007). By August 31, 2007, the Department received
review requests for 32 companies from Petitioners \1\ and certain
individual companies. In addition, pursuant to 19 CFR 351.214(c), the
Department also received a new shipper review request from Binh An.
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\1\ The Catfish Famers 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 25, 2007, the Department initiated an antidumping duty
administrative review on frozen fish fillets from Vietnam covering 32
companies. See Initiation of Antidumping and Countervailing Duty
Administrative Reviews and Requests for Revocation in Part, 72 FR 54428
(September 25, 2007). On October 9, 2007, the Department initiated the
new shipper review for Binh An. See Notice of Initiation of Antidumping
Duty Administrative Reviews: Certain Frozen Fish Fillets from the
Socialist Republic of Vietnam, 72 FR 57296 (October 9, 2007).\2\ On
March 3, 2008, the Department extended the deadline for the preliminary
results of this review by 120 days, to September 2, 2008. See Notice of
Extension of Time Limits for Preliminary Results of Antidumping Duty
Administrative and Partial Rescission of Administrative Review: Certain
Frozen Fish Fillets from Vietnam (``Extension and Partial Rescission
Notice''), 73 FR 11391 (March 3, 2008).
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\2\ The Department also initiated a new shipper review on
October 9, 2007, for Southern Fishery Industries Company, Ltd.
(``South Vina''). However, unlike Binh An, South Vina did not agree
to aligning its new shipper review with the concurrent
administrative review and therefore, the preliminary results for
South Vina were issued on July 22, 2008. See Notice of Preliminary
Rescission of New Shipper Review: Certain Frozen Fish Fillets from
the Socialist Republic of Vietnam, 73 FR 43689 (July 28, 2008).
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On October 12, 2007, the Department issued a letter to all
interested parties informing them of its decision to select QVD and
Vinh Hoan Co., Ltd. (``Vinh Hoan''), the two largest exporters of
subject merchandise during the POR, as mandatory respondents based on
Customs and Border Protection (``CBP'') import data. See Memorandum to
the File from Catherine Bertrand, Senior Case Analyst Through Alex
Villanueva, Program Manager, Respondent Selection Memorandum
(``Respondent Selection Memo''), dated October 11, 2007.
Between November 1, 2007, and August 25, 2008, QVD submitted
responses to the original sections A, C, and D questionnaires and
supplemental sections A, C, and D questionnaires. Between November 11,
2007, and August 15, 2008, Binh An submitted responses to the original
sections A, C, and D questionnaires and supplemental sections A, C, and
D questionnaires. Vinh Hoan also submitted questionnaire responses, as
indicated below; however, the administrative review for Vinh Hoan was
rescinded. On August 22, 2008, Petitioners submitted comments regarding
the preliminary results with respect to QVD and Binh An.
On March 3, 2008, the Department extended the preliminary results
of administrative review and rescinded the administrative with respect
to 25 companies, including Vinh Hoan, because all requesting parties
for those companies timely withdrew their requests for review. See
Extension and Partial Rescission Notice. Therefore, seven companies
remain in this administrative review: An Xuyen Company Ltd. (``An
Xuyen''), Lian Heng Trading Co., Ltd (``Lian Heng''), QVD Food Company,
Ltd. (``QVD''), QVD Dong Thap Food Co., Ltd. (``QVD DT''), Thuan Hung
Co., Ltd. (``Thuan Hung''), An Giang Fisheries Import and Export Joint
Stock Company (``Agifish'' or ``AnGiang Fisheries Import and Export'');
Anvifish Co., Ltd. (``Anvifish'').
An Xuyen/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 3. In this case, we sent companies who were not
selected the separate rates application and certification. See Letter
to All Interested Parties, dated October 17, 2007. An Xuyen did not
apply for a separate rate in this administrative review. Therefore, An
Xuyen 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.
Preliminary Partial Rescission
Lian Heng
On October 22, 2007, Lian Heng stated that it made no exports of
subject merchandise during the POR. Our examination of shipment data
from CBP for Lian Heng confirmed that there were no entries of subject
merchandise from it during the POR. Therefore, because the record
indicates that Lian Heng did not sell subject merchandise to the United
States during the POR, we are preliminarily rescinding the
administrative review for Lian Heng. See 19 CFR 351.213(d)(3).
QVD, QVD DT and Thuan Hung
On November 1, 2007, we received a questionnaire response from QVD
indicating that QVD, QVD DT and Thuan Hung had export licenses during
the POR, but that only QVD exported subject merchandise to the United
States during the POR. See QVD's Questionnaire Response at 5. QVD, QVD
DT and Thuan Hung provided a joint response to the separate rates
section of the Department's questionnaires. Our examination of shipment
data from CBP for QVD DT and Thuan Hung confirmed that there were no
entries of subject merchandise from these entities during the POR.
However, because QVD, QVD DT and Thuan Hung will continue to be treated
as a single entity (see ``Affiliations'' section below), we will not
rescind the review for QVD DT and Thuan Hung, because a component of
the QVD Single Entity had entries of subject merchandise during the POR
and remains subject to the administrative review.
Agifish & Anvifish
On November 30, 2007, Agifish submitted a separate rate
certification. On December 11, 2007, Anvifish submitted a separate rate
application. We also examined the CBP data placed on the record and
confirmed that Agifish and Anvifish had entries of subject merchandise
during the POR.
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
[[Page 52017]]
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, QVD, and Binh An \3\ submitted
complete responses to the separate rates certification and application.
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.
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\3\ Binh An addressed the separate rates section of the
Department's questionnaire in its November 1, 2007, submission.
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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, Anvifish, QVD, and Binh An 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, Anvifish, QVD, and
Binh An have established prima facie that they qualify for separate
rates under the criteria established by Silicon Carbide and Sparklers.
Rate for Non-Selected Companies
The statute and the Department's regulations do not directly
address the establishment of rates to be applied to companies not
selected for examination where the Department limited its examination
in an administrative review pursuant to section 777A(c)(2) of the Act.
However, we normally determine the rates for non-selected companies in
reviews in a manner that is consistent with section 735(c)(5) of the
Act. In this review, we have only a de minimis company-specific dumping
margin for QVD, the only mandatory respondent. However, we also have
considered that we found dumping margins in previous segments of this
proceeding. Therefore, based on the facts of this case, we have
considered the prior rates calculated for these companies and others in
choosing a reasonable method to determine the rates for these companies
in the current review. See Brake Rotors From the People's Republic of
China: Final Results of 2006-2007 Administrative and New Shipper
Reviews and Partial Rescission of 2006-2007 Administrative Review, 73
FR 32678 (June 10, 2008) and accompanying Issues and Decision
Memorandum at Comment 1 (``the selection of a `reasonable method' to
use when, as here, the rates of the mandatory respondents are zero and
de minimis, must be made on a case-by-case basis and would depend on
the facts of the case''). For the separate rate companies, that method
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.
Anvifish recently received a calculated rate of de minimis in a new
shipper review. See Notice of Amended Final Results of Antidumping Duty
New Shipper Review: Certain Frozen Fish Fillets from Vietnam (``New
Shipper Review Final''), 73 FR 47884 (August 15, 2008). Agifish has not
been subject to an administrative review since the less-than-fair-value
investigation in which it received a rate of 47.05 percent. See Order.
For purposes of these preliminary results, we have assigned Anvifish's
de minimis rate calculated in the recent new shipper review as
Anvifish's non-selected separate rate in this review. For Agifish, we
have assigned the rate of 15.38 percent, which represents the most
recent calculated rate that is not zero or de minimis and not based
entirely on facts available and a rate for a period that is more recent
than is Agifish's rate from the investigation. For the Vietnam-wide
entity (including An Xuyen), we have assigned the entity's current rate
and only rate ever determined for the entity in this proceeding.
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.
[[Page 52018]]
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'').\4\ 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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\4\ 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 normal value (``NV'') in
accordance with section 773(c) of the Act, which applies to NME
countries.
Surrogate Country and Surrogate Values
On February 25, 2008, the Department sent interested parties a
letter requesting comments on surrogate country selection and
information pertaining to valuing factors of production (``FOP''). Binh
An submitted surrogate country comments and surrogate value data on
March 24, 2008. QVD and Petitioners submitted surrogate country
comments and surrogate value data on May 22, 2008.
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 Matthew
Renkey, Senior Case Analyst, dated September 2, 2008.
The Department determined that Bangladesh, Pakistan, India,
Indonesia, and Sri Lanka are countries comparable to Vietnam in terms
of economic development.\5\ 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). 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
publicly available and reliable data. See Memorandum to the File, from
Alan Ray, Case Analyst, dated September 2, 2008. 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 used data from Indian sources.
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\5\ See Memorandum from Carole Showers, 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 (February 20,
2008).
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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 restraint 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 pursuant to sections 771(33)(A), (B), (E), (F), and (G) of
the Act and 19 CFR 351.401 (f). See 3rd AR Final Results. The
Department also determined that QVD USA LLC (``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 CEP through QVD USA to its first
unaffiliated U.S. customer. See 3rd AR Final Results. The Department
also determined that Beaver Street Fisheries (``BSF'') and QVD USA were
not affiliated. See 3rd AR Final Results.
[[Page 52019]]
In QVD's supplemental section A response, it stated that
``{d{time} uring the POR there were no changes in the corporate
structures of any of the QVD companies, or affiliates. There were no
changes from POR 3 in the capital structure, scope of operations,
affiliations, production capacity, ownership or management.'' See QVD's
July 11, 2008, Section A Supplemental Questionnaire at 20.
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 AR Final Results. 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.
Fair Value Comparisons
To determine whether sales of the subject merchandise made by QVD
or Binh An to the United States were at prices below NV, we compared
each company's export price (``EP'') or constructed export price
(``CEP''), where appropriate, to NV, as described below.
U.S. Price
For Binh An'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 sale, 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 U.S. sales through its
U.S. affiliate, QVD USA, to unaffiliated customers.
For QVD'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 carry 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 Binh An for the new shipper review. We
preliminarily find that the new shipper sales made by Binh An are bona
fide transactions. Based on our investigation into the bona fide nature
of the sales, the questionnaire responses submitted by Binh An, as well
the company's eligibility for a separate rate (see ``Separate Rates''
section above), and the Department's preliminary determination that
Binh An was not affiliated with any exporter or producer that had
previously shipped subject merchandise to the United States, we
preliminarily determine that Binh An has met the requirements to
qualify as a new shipper during the POR. Therefore, for purposes of
these preliminary results of review, we are treating Binh An'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 Binh An's sales during verification and for
the final results.
Duty Absorption
On October 25, 2007, Petitioner requested that the Department
determine whether antidumping duties had been absorbed for U.S. sales
of frozen fish fillets made during the POR by the respondents selected
for review. Section 751(a)(4) of the Act provides for the Department,
if requested, to determine during an administrative review initiated
two or four years after publication of the order, whether antidumping
duties have been absorbed by a foreign producer or exporter, if the
subject merchandise is sold in the United States through an affiliated
importer. In this case, only QVD sold subject merchandise in the United
States through an affiliated importer. Because the antidumping duty
order underlying this review was issued in 2003, and this review was
initiated in 2007, we are conducting a duty absorption inquiry for this
segment of the proceeding.
In determining whether the antidumping duties have been absorbed by
the respondent, we presume the duties will be absorbed for those sales
that have been made at less than NV. This presumption can be rebutted
with evidence (e.g., an agreement between the affiliated importer and
unaffiliated purchaser) that the unaffiliated purchaser will pay the
full duty ultimately assessed on the subject merchandise. See, e.g.,
Certain Stainless Steel Butt-Weld Pipe Fittings From Taiwan:
Preliminary Results of Antidumping Duty Administrative Review and
Notice of Intent to Rescind in Part, 70 FR 39735, 39737 (July 11, 2005)
(unchanged in final results). On August 18, 2008, the Department
requested QVD to provide evidence to demonstrate that its unaffiliated
U.S. purchasers will pay any antidumping duties ultimately assessed on
entries of subject merchandise.
On August 25, 2008, QVD filed a response rebutting the duty-
absorption presumption by explaining that the ultimate unaffiliated
U.S. purchasers paid for the duties. QVD references its financial
statements and a transaction-specific analysis in which they argue that
even after all price adjustments are considered, QVD has passed on duty
costs to unaffiliated customers. We conclude that this information
sufficiently demonstrates that the unaffiliated purchasers in the
United States will ultimately pay the assessed duties. See QVD's August
25, 2008, Submission at 2. Therefore, we preliminarily find that
antidumping duties have not been absorbed by QVD on U.S. sales made
through its affiliated importer.
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
[[Page 52020]]
by QVD and Binh An, pursuant to sections 773(c)(3) and (4) of the Act
and 19 CFR 351.408(c).
As the basis for NV, QVD and Binh An 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 and Binh An's reported per-unit
factor quantities using publicly available Bangladeshi, Indian, and
Indonesian surrogate values. 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, 2006, through July 31, 2007:
Certain Frozen Fish Fillets from Vietnam
------------------------------------------------------------------------
Manufacturer/exporter Weighted- average margin
------------------------------------------------------------------------
QVD \6\................................... de minimis
Anvifish.................................. de minimis
Agifish................................... 15.38
Binh An................................... de minimis
Vietnam-wide Entity \7\................... 63.88
------------------------------------------------------------------------
\6\ This rate is applicable to the QVD Single Entity which includes QVD,
QVD DT, and Thuan Hung.
\7\ Includes An Xuyen.
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 20 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 respondent, QVD, and new
shipper, Binh An, we will calculate importer-specific duty assessment
rates on a per-unit basis.\8\ Where the assessment rate is de minimis,
we will instruct CBP to assess 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.
---------------------------------------------------------------------------
\8\ 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, 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 63.88 percent, and (4) for all non-Vietnam
exporters of subject merchandise which have not received their own
rate, the cash deposit rate will be the rate applicable to the Vietnam
exporters that supplied that non-Vietnam exporter. These deposit
requirements, when imposed, shall remain in effect until further
notice.
Notification to Interested Parties
This notice serves as a preliminary reminder to importers of their
responsibility under 19 CFR 351.402(f)(2) to file a certificate
regarding the reimbursement of antidumping duties prior to liquidation
of the relevant entries during this POR.
[[Page 52021]]
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 2, 2008.
David M. Spooner,
Assistant Secretary for Import Administration.
[FR Doc. E8-20755 Filed 9-5-08; 8:45 am]
BILLING CODE 3510-DS-P