Antidumping: Frozen fish fillets from Vietnam,
[Federal Register: September 19, 2007 (Volume 72, Number 181)]
[Notices]
[Page 53527-53538]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19se07-41]
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 Third Antidumping Duty Administrative Review
AGENCY: Import Administration, International Trade Administration, Department of Commerce. SUMMARY: The Department of Commerce (``Department'') is conducting an administrative review of the antidumping duty order on certain frozen fish fillets from the Socialist Republic of Vietnam (``Vietnam''). 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'') sold subject merchandise at less than normal value (``NV'') during the period of review (``POR''), August 1, 2005, through July 31, 2006. We also preliminarily determine that East Sea Seafoods Joint Venture Co., Ltd. (``East Sea'') has not made sales in the United States at prices below normal value. We continue to find that certain frozen fish fillets produced during the expanded POR \1\ by Lian Heng Investment Co., Ltd. and Lian Heng Trading Co., Ltd. (collectively ``Lian Heng'') were made from Vietnamese-origin fish and therefore, are covered by this review. In addition, we are preliminarily rescinding the review for nine companies \2\ which reported having no shipments of subject merchandise to the United States during the POR. We are also preliminarily rescinding the review for an affiliate of QVD, QVD Dong Thap Food Co., Ltd. (``QVD Dong Thap''), because QVD reported that QVD Dong Thap did not ship any subject merchandise to the United States during the POR.\3\ Finally, we continue to apply an adverse facts available rate of 80.88 percent to Can Tho Agricultural and Animal Products Import Export Company (``CATACO'') because it failed to respond to the Department's two quantity and value questionnaires. If these preliminary results are adopted in our final results of review, we will instruct U.S. Customs and Border Protection (``CBP'') to assess antidumping duties on entries of subject merchandise during the POR for which the importer-specific assessment rates are above de minimis.
\1\ Lian Heng has an expanded POR which covers the period October 22, 2004, through July 31, 2006. See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 71 FR 57465 (September 29, 2006) (``Initiation Notice'').
\2\ The nine companies are: Ben Tre Forestry and Aquaproduct Import-Export Company (``FAQUIMEX''); Hung Vuong Co., Ltd.; Nam Viet Company Limited (``NAVICO''); Phu Thuan Company; Sadec Aquatic Products Import Enterprise (``DOCIFISH''); Thuan Hung Co., Ltd. (``Thuan Hung''); United Seafood Packers Co., Ltd.; Van Duc Foods Export Joint Stock Co.; Viet Hai Seafood Company Limited (``Vietnam Fish-One'').
\3\ See QVD's Separate-Rate Certification dated December 11, 2006.
EFFECTIVE DATE: September 19, 2007.
FOR FURTHER INFORMATION CONTACT: Cindy Lai Robinson (Respondent East Sea), Michael Holton (Respondent QVD), and Paul Walker (Respondent Lian Heng), AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-3797, (202) 482-1324 and (202) 482-0413, respectively.
SUPPLEMENTARY INFORMATION:
Case History
General
On August 1, 2006, 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, 71 FR 43441 (August 1, 2006). On August 31, 2006, the Department received a request from the Catfish Farmers of America and individual U.S. catfish processors (collectively, ``Petitioners'') for a review covering 51 exporters/
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manufacturers.\4\ Additionally, on August 31, 2006, the following four exporters/manufacturers separately requested a review: Cantho Import Export Seafood Joint Stock Company (``CASEAMEX''); East Sea; \5\ QVD; and Vinh Hoan.\6\
\4\ Petitioners requested a review on the following companies: (1) Alphasea Co., Ltd. (``Alphasea''); (2) An Giang Agriculture and Foods Import Export Company (``Afiex''); (3) An Giang Agriculture Technology Service Company (``ANTESCO''); (4) An Giang Fisheries Import and Export Joint Stock Company (``Agifish''); (5) An Lac Seafood Co., Ltd. (``An Lac''); (6) ANHACO; (7) Bamboo Food Co., Ltd.; (8) Basa Co., Ltd.; (9) FAQUIMEX; (10) Binh Dinh Import Export Company (``Imex Binhdinh''); (11) Blue Sky Co., Ltd.; (12) Cam Ranh Seafood Processing Seaprodex Company (``Cam Ranh''); (13) CATACO; (14) Cantho Seafood Export (``CASEAFOOD''); (15) Can Tho Animal Fishery Products Processing Export Enterprise (``Cafatex''); (16) Da Nang Seaproducts Import-Export Corporation (``Da Nang''); (17) Dragon Waves Frozen Food Factory Co. (``Dragon''); (18) Duyen Hai Foodstuffs Processing Factory (``COSEAFEX''); (19) Geologistics Ltd.; (20) Gepimex 404 Company; (21) Hai Thach Trading Services Co., Ltd.; (22) Hai Vuong Co., Ltd.; (23) Hung Vuong Co., Ltd.; (24) Kien Giang Ltd.; (25) Mekongfish Company (aka Mekong Fisheries Joint Stock Company) (``Mekonimex''); (26) Nam Duong Co., Ltd. (aka KP Khanh Loi or Nam Duong Trading Co.); (27) Nam Hai Co., Ltd.; (28) NAVICO; (29) Nhan Hoa Co., Ltd.; (30) Phan Quan Trading Co., Ltd.; (31) Phu Thanh Frozen Factory; (32) Phu Thuan Company; (33) Phuoc My Seafoods Processing Factory; (34) Phuong Dong Seafood Co., Ltd.; (35) Quang Dung Food Co., Ltd.; (36) QVD; (37) QVD Dong Thap; (38) DOCIFISH; (39) Thanh Viet Co. Ltd.; (40) Thuan Hung; (41) Tin Thinh Co. Ltd.; (42) Tuan Anh Company Limited; (43) United Seafood Packers Co., Ltd.; (44) Van Duc Foods Export Joint Stock Co.; (45) Vietnam Fish-One; (46) Vinh Hiep Co., Ltd.; (47) Vinh Hoan Company, Ltd. (``Vinh Hoan''); (48) Vinh Long Import-Export Company (``Imex Cuu Long''); (49) VN Seafoods Co., Ltd.; and (50-51) Lian Heng.
\5\ On August 31, 2006, East Sea also separately requested a new shipper review (``NSR''), but it withdrew its NSR request on November 13, 2006. The Department rescinded East Sea's NSR request on January 23, 2007. See Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Notice of Rescission of Antidumping Duty New Shipper Review, 72 FR 2857 (January 23, 2007).
\6\ On August 29, 2006, H&N Foods International (``H&N''), a U.S.-based importer of the merchandise subject to this administrative review, also requested that the Department conduct an administrative review of H&N's entries of subject merchandise produced and exported by Vinh Hoan.
On September 29, 2006, the Department initiated this antidumping duty administrative review covering all 53 companies. See Initiation Notice.
At the request of Petitioners and pursuant to the Department's recent partial affirmative final determination of circumvention of the antidumping duty order on certain frozen fish fillets from Vietnam, we included Lian Heng, a Cambodian producer and reseller of the merchandise under review, in this proceeding with an expanded POR. See Circumvention and Scope Inquiries on the Antidumping Duty Order on Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Partial Affirmative Final Determination of Circumvention of the Antidumping Duty Order, Partial Final Termination of Circumvention Inquiry and Final Rescission of Scope Inquiry, 71 FR 38608 (July 7, 2006) (``Circumvention Inquiry''). See, also, Initiation Notice.
Period of Review
With the exception of Lian Heng, the POR is August 1, 2005, through July 31, 2006. In accordance with the Circumvention Inquiry, the POR for Lian Heng is October 22, 2004, through July 31, 2006.
Quantity and Value (``Q&V'') Responses
On October 12, 2006, the Department issued questionnaires requesting the total Q&V of subject merchandise exported to the United States during the POR to all 53 companies subject to the administrative review. In the same letter, the Department also provided information for respondents to submit a Separate-Rate Application or Separate-Rate Certification.\7\
\7\ See Letter with Attachments from Alex Villanueva, Program Manager, to All Interested Parties (October 12, 2006). The Q&V questionnaire response was originally due on October 26, 2006. The due date for the Separate-Rate Application was December 11, 2006, and the due date for the Separate-Rate Certification was November 11, 2006.
On October 25, 2006, Lian Heng submitted a letter to the Department arguing that it was inappropriate for Lian Heng to respond to the Q&V questionnaire response because its exports of frozen fish fillets are products of Cambodia, not Vietnam. On November 6, 2006, the Department instructed Lian Heng to separately identify the Q&V of those exports that were accompanied by a certificate and those that were not. Lian Heng submitted its Q&V response on November 17, 2006.
On November 3, 2006, the Department issued a letter to all initiated companies who had not submitted a Q&V response granting them a second opportunity to submit the Q&V of any exports of subject merchandise to the United States during the POR by November 17, 2006. See Letter from Alex Villanueva, Program Manager, to All Interested Parties, Re: Second Opportunity to Respond to the Quantity and Value Questionnaire for Certain Frozen Fish Fillets from the Socialist Republic of Vietnam (November 3, 2006).
Between October 19, 2006, and November 17, 2006, the Department received Q&V questionnaire responses from the following 17 companies: Alphasea; Agifish; FAQUIMEX; Seaprodex Da Nang; East Sea; Hung Vuong Co., Ltd.; NAVICO; Phu Thuan Company; QVD; DOCIFISH; Thanh Viet Co. Ltd.; Thuan Hung; United Seafood Packers Co., Ltd.; Van Duc Foods Export Joint Stock Co.; Vietnam Fish-One; Vinh Hoan; and Lian Heng (which consists of Lian Heng Investment Co., Ltd., and Lian Heng Trading Co., Ltd.). Of the 17 companies, the following nine companies stated that they did not have sales, shipments, or entries of the subject merchandise to the United States during the POR: FAQUIMEX; Hung Vuong Co., Ltd.; NAVICO; Phu Thuan Company; DOCIFISH; Thuan Hung; United Seafood Packers Co., Ltd.; Van Duc Foods Export Joint Stock Co.; and Vietnam Fish-One.
Between November 8, 2006, and December 11, 2006, the Department received Separate-Rate Certifications from the following five companies: Agifish; QVD; Da Nang; Thuan Hung; and Vinh Hoan, and a Separate-Rate Application from East Sea. In its letter dated December 11, 2006, Lian Heng indicated that it would not respond to the Separate-Rate Application/Certification in this proceeding because it did not export subject merchandise to the United States during the POR.
On November 22, 2006, the Department issued a letter to Alphasea rejecting its Q&V response due to a filing deficiency and instructed it to resubmit its Q&V questionnaire response by December 1, 2006. See Letter from Alex Villanueva, Program Manager, to Day N. Ton, Alphasea Co., Ltd., Re: Third Administrative Review on Certain Frozen Fish Fillets from the Socialist Republic of Vietnam (November 22, 2006). Alphasea resubmitted its Q&V questionnaire response on December 1, 2006.
Withdrawal Requests and Partial Rescission
On October 25, 2006, CASEAMEX withdrew its request for an administrative review. On December 8, 2006, Vinh Hoan withdrew its request for an administrative review. On December 26, 2006, H&N withdrew its request for the review of its entries of subject merchandise produced and exported by Vinh Hoan. Also on December 26, 2006, Petitioners withdrew their request for 37 exporters/ manufacturers.\8\ Additionally, on
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December 27, 2006, Petitioners withdrew their review request for QVD. However, QVD still has an active review request.
\8\ The 37 companies are: Alphasea; Afiex; ANTESCO; Agifish; An Lac; ANHACO; Bamboo Food Co., Ltd.; Basa Co., Ltd.; Imex Binhdinh; Blue Sky Co., Ltd.; Cam Ranh; CASEAFOOD; Cafatex; Da Nang; Dragon; COSEAFEX; Geologistics Ltd.; Gepimex 404 Company; Hai Thach Trading Services Co., Ltd.; Hai Vuong Co., Ltd.; Kien Giang Ltd.; Mekonimex; Nam Duong Co., Ltd.; Nam Hai Co., Ltd.; Nhan Hoa Co., Ltd.; Phan Quan Trading Co., Ltd.; Phu Thanh Frozen Factory; Phuoc My Seafoods Processing Factory; Phuong Dong Seafood Co., Ltd.; Quang Dung Food Co., Ltd.; Thanh Viet Co. Ltd.; Tin Thinh Co. Ltd.; Tuan Anh Company Limited; Vinh Hiep Co., Ltd.; Vinh Hoan; Imex Cuu Long; and VN Seafoods Co., Ltd.
On March 12, 2007, in accordance with 19 CFR 351.213(d)(1), we rescinded the administrative review with respect to 38 companies. See Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Partial Rescission and Notice of Intent to Rescind, in Part, and Partial Extension of Time Limit for Preliminary Results of the Third Antidumping Duty Administrative Review, 72 FR 10981 (March 12, 2007) (``Partial Rescission and Extension of Preliminary Results'').
Therefore, this review covers 15 producers/exporters \9\ of the subject merchandise and the Vietnam-wide entity.
\9\ See ``Preliminary Partial Rescission of No-Shipment Companies and QVD Dong Thap'' section below.
Respondent Selection
On December 26, 2006, Petitioners submitted comments regarding respondent selection. Specifically, Petitioners requested that the Department conduct a review of the entries of subject merchandise during the POR for the remaining 15 companies.
On January 5, 2007, the Department issued a letter to all interested parties informing them of its decision to select the two largest of the remaining 15 exporters/producers of subject merchandise during the POR as mandatory respondents: East Sea and QVD. Although the Department did not select Lian Heng as a mandatory respondent in this review, because of its claim that its U.S. exports were not harvested in Vietnam, the Department sent Lian Heng a questionnaire regarding its reported Q&V.
For the other 12 remaining companies, see ``Preliminary Partial Rescission of No-Shipment Companies and QVD Dong Thap'' section, and ``Application of Adverse Facts Available (``AFA'')'' section (``CATACO'' subsection) below.
Mandatory Respondents and Lian Heng
On January 12, 2007, the Department issued the standard non-market economy questionnaires to East Sea and QVD. On January 17, 2007, the Department issued a ``no shipment questionnaire'' to Lian Heng requesting additional information regarding its shipments to the United States.
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East Sea
On January 24, 2007, East Sea requested a one-week extension until February 8, 2007, to submit its original section A questionnaire response. On January 29, 2007, the Department granted East Sea the extension, and East Sea submitted its original section A questionnaire response on February 8, 2007. On February 12, 2007, East Sea submitted a letter requesting a nineteen-day extension to submit its original sections C and D questionnaire response. On February 15, 2007, the Department granted East Sea a sixteen-day extension from February 18, 2007, to March 6, 2007. East Sea submitted its original sections C and D questionnaire response on March 6, 2007.
On March 23, 2007, Petitioners submitted its comments on East Sea's original sections A, C and D questionnaire responses. On April 3, 2007, the Department issued its first sections A, C and D supplemental questionnaire to East Sea. On April 13, 2007, East Sea requested a two- week extension to respond to the Department's first sections A, C and D supplemental questionnaire. On April 19, 2007, the Department granted East Sea an eight-day extension until May 2, 2007. On April 27, 2007, East Sea requested a two-day extension to submit its first sections A, C and D supplemental questionnaire response. On April 30, 2007, the Department granted East Sea the extension, and East Sea submitted its first sections A, C and D supplemental questionnaire response on May 4, 2007.
On June 13, 2007, the Department issued its second sections A, C and D supplemental questionnaire to East Sea. On June 20, 2007, East Sea requested a five-day extension to respond to the Department's second sections A, C and D supplemental questionnaire. The Department granted East Sea' request on June 22, 2007.
On June 25 and 27, 2007, the Department issued its third and fourth sections A, C and D supplemental questionnaires, respectively, to East Sea. On July 2, 2007, East Sea requested a three-day extension to respond to the Department's second, third and fourth sections A, C and D supplemental questionnaires. On July 2, 2007, the Department granted East Sea a one-day extension to submit its second sections A, C and D supplemental questionnaire responses, and a three-day extension to submit the remaining second, third and fourth supplemental questionnaire responses. East Sea submitted its responses to the Department's second, third, and fourth supplemental questionnaires on July 3 and 5, 2007, accordingly. On August 14, 2007, Petitioners submitted pre-preliminary results comments with respect to East Sea. On August 20, 2007, East Sea submitted its rebuttal comments.
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QVD
On January 30, 2007, QVD requested a three-week extension to submit its original section A questionnaire response, which was due on February 2, 2007. On February 1, 2007, the Department granted QVD a ten-day extension until February 12, 2007, to submit its original section A questionnaire response.
On February 12, 2007, QVD submitted its original section A questionnaire response. QVD also requested a four-week extension to submit its original sections C and D questionnaire response, which was due February 18, 2007. On February 15, 2007, the Department granted QVD an extension from February 18, 2007, to March 16, 2007. On March 2, 2007, QVD requested a one-week extension to submit its original section D questionnaire response. On March 6, 2007, Department granted QVD the extension. Also, on March 6, 2007, QVD submitted its original section C questionnaire response. On March 13, 2007, QVD submitted its original section D questionnaire response. On March 27, 2007, Petitioners submitted their comments on QVD's original sections A, C and D questionnaire responses, to which QVD filed a response on April 6, 2007.
On May 8, 2007, the Department issued its first supplemental questionnaire (sections A, C and D) to QVD. On May 17, 2007, QVD requested a one-week extension to submit its first supplemental questionnaire response (sections A and C). On May 18, 2007, the Department granted QVD a one-week extension to submit its first supplemental questionnaire responses (sections A and C) to May, 29, 2007 and June 5, 2007, respectively.
On May 29, 2007, the Department issued a revised version of its first sections A, C and D supplemental questionnaire since the Department had already considered several of QVD's affiliations with certain parties in the final results of the second administrative review of this case. The Department also extended the deadline for QVD's first section A supplemental questionnaire response to June 1, 2007.
On May 29, 2007, QVD requested a one-week extension to submit its first section D supplemental questionnaire
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response. On May 31, 2007, the Department granted QVD the extension. On June 1, 2007, QVD submitted its first section A supplemental questionnaire response. On June 5, 2007, QVD submitted its first section A supplemental questionnaire response. On June 7, 2007, QVD requested a one week extension to submit its first section D supplemental questionnaire response. On June 8, 2007, the Department granted QVD the extension, and QVD submitted its first section D supplemental questionnaire response on June 12, 2007.
On June 29, 2007, the Department issued a second sections C and D supplemental questionnaire to QVD. On July 11, 2007, QVD requested a one-week extension to submit its second sections C and D supplemental questionnaire response. On July 12, 2007, the Department granted QVD a three-day extension to submit its second section C supplemental questionnaire response and a one-week extension to submit its second section D supplemental questionnaire response to July 18, 2007, and July 20, 2007, respectively. On July 18 and 20, 2007, QVD submitted its second sections C and D supplemental questionnaire response, respectively. On August 6, 2007, Petitioners submit pre-preliminary results comments with respect to QVD, to which QVD submitted rebuttal comments on August 14, 2007. We issued a supplemental questionnaire on August 7, 2007, and QVD responded on August 14, 2007.
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Lian Heng
On November 17, 2006, Lian Heng submitted a Q&V response. On January 17, 2007, the Department issued a supplemental questionnaire, which Lian Heng responded to on February 21, 2007. On January 17, 2007, the Department issued a second supplemental questionnaire, which Lian Heng responded to on May 11, 2007.
Verification
Pursuant to 19 CFR 351.307(b)(iv), we conducted a verification of Lian Heng from June 19, 2007, through June 22, 2007. See Memorandum to the file through Alex Villanueva, Program Manager, Office 9, from Paul Walker, Senior Analyst, Office 9: 3rd Administrative Review of Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Verification of Lian Heng Trading Co., Ltd.
Preliminary Partial Rescission of No-Shipment Companies and QVD Dong Thap
No-Shipment Companies
As noted above, after the withdrawal requests, there are 15 remaining companies: FAQUIMEX; CATACO; East Sea; Hung Vuong Co. Ltd.; NAVICO; Phu Thuan Company; QVD; QVD Dong Thap; DOCIFISH; Thuan Hung; United Seafood Packers Co., Ltd.; Van Duc Foods Export Joint Stock Co.; Vietnam Fish-One; and Lian Heng (which consists of Lian Heng Investment Co., Ltd and Lian Heng Trading Co., Ltd.). Nine of these 15 remaining companies reported in their Q&V questionnaire responses that they made no shipments of subject merchandise to the United States during the POR. Our examination of shipment data from CBP for these nine companies confirmed that there were no entries of subject merchandise from them during the POR. Consequently, because there is no evidence on the record to indicate that these nine companies had sales of subject merchandise under this Order during the POR, in accordance with 19 CFR 351.213(d)(3), we are preliminarily rescinding the review with respect to these nine respondents: FAQUIMEX; Hung Vuong Co., Ltd.; NAVICO; Phu Thuan Company; DOCIFISH; Thuan Hung; United Seafood Packers Co., Ltd.; Van Duc Foods Export Joint Stock Co.; and Vietnam Fish-One.
QVD Dong Thap
We are also preliminarily rescinding the review of QVD Dong Thap in accordance with 19 CFR 351.213(d)(3). QVD Dong Thap did not respond to the Department's first and second Q&V questionnaires dated October 12, 2006, and November 3, 2006, respectively. However, on December 11, 2006, QVD submitted a separate-rate certification in which it indicated that it had two affiliated entities \10\ which were involved in the production of subject merchandise: (1) QVD Dong Thap; and (2) Thuan Hung. Moreover, QVD indicated that neither company exported subject merchandise to the United States during the POR.
\10\ See ``Affiliations'' section above.
Our examination of shipment data from CBP for QVD Dong Thap confirmed that there were no entries of subject merchandise from it during the POR. Consequently, because there is no evidence on the record to indicate that QVD Dong Thap had sales of subject merchandise under this Order during the POR, we are preliminarily rescinding the review with respect to QVD Dong Thap.
Based on withdrawals and subsequent rescissions, and the Department's preliminary determination to rescind the review with respect to an additional ten companies which reported having no shipments of subject merchandise during the POR, five companies remain respondents in this review: East Sea; QVD; Lian Heng (which consists of Lian Heng Investment Co., Ltd. and Lian Heng Trading Co., Ltd.); and CATACO.
Scope of the Order
The product covered by this Order is frozen fish fillets, including regular, shank, and strip fillets and portions thereof, whether or not breaded or marinated, of the species Pangasius Bocourti, Pangasius Hypophthalmus (also known as Pangasius Pangasius), and Pangasius Micronemus. Frozen fish fillets are lengthwise cuts of whole fish. The fillet products covered by the scope include boneless fillets with the belly flap intact (``regular'' fillets), boneless fillets with the belly flap removed (``shank'' fillets), boneless shank fillets cut into strips (``fillet strips/finger''), which include fillets cut into strips, chunks, blocks, skewers, or any other shape. Specifically excluded from the scope are frozen whole fish (whether or not dressed), frozen steaks, and frozen belly-flap nuggets. Frozen whole dressed fish are deheaded, skinned, and eviscerated. Steaks are bone-in, cross- section cuts of dressed fish. Nuggets are the belly-flaps. The subject merchandise will be hereinafter referred to as frozen ``basa'' and ``tra'' fillets, which are the Vietnamese common names for these species of fish. These products are classifiable under tariff article codes 1604.19.4000,\11\ 1604.19.5000,\12\ 0305.59.4000,\13\ 0304.29.6033 \14\ (Frozen Fish Fillets of the species Pangasius including basa and tra) of the Harmonized Tariff Schedule of the
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United States (``HTSUS'').\15\ 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.
\11\ See Memorandum to the File, from Cindy Robinson, Senior Case Analyst, Office 9, Import Administration, Subject: Frozen Fish Fillets: Third Addition of Harmonized Tariff Number, (March 1, 2007). This HTS went into effect on March 1, 2007.
\12\ See Memorandum to the File, from Cindy Robinson, Senior Case Analyst, Office 9, Import Administration, Subject: Frozen Fish Fillets: Third Addition of Harmonized Tariff Number, (March 1, 2007). This HTS went into effect on March 1, 2007.
\13\ See Memorandum to the File, from Cindy Robinson, Senior Case Analyst, Office 9, Import Administration, Subject: Frozen Fish Fillets: Second Addition of Harmonized Tariff Number, (February 2, 2007). This HTS went into effect on February 1, 2007.
\14\ See Memorandum to the File, from Cindy Robinson, Senior Case Analyst, Office 9, Import Administration, Subject: Frozen Fish Fillets: Addition of Harmonized Tariff Number, (January 30, 2007). This HTS went into effect on February 1, 2007.
\15\ 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.
Extension of Preliminary Results
On March 12, 2007, the Department extended the deadline for the preliminary results of this review by 90 days, to August 1, 2007. See Partial Rescission and Extension of Preliminary Results. On July 26, 2007, the Department further extended the deadline for the preliminary results of this review by an additional 30 days, to August 31, 2007. See Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Extension of Time Limits for the Preliminary Results of the 3rd Administrative Review, 72 FR 43235 (August 3, 2007).
Application of Adverse Facts Available (``AFA'')
Section 776(a)(2) of the Tariff Act of 1930, as amended (``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.
Section 782(c)(1) of the Act provides that if an interested party ``promptly after receiving a request from {the Department{time} for information, notifies {the Department{time} that such party is unable to submit the information requested in the requested form and manner, together with a full explanation and suggested alternative form in which such party is able to submit the information,'' the Department may modify the requirements to avoid imposing an unreasonable burden on that party.
Section 782(d) of the Act provides that, if the Department determines that a response to a request for information does not comply with the request, the Department will inform the person submitting the response of the nature of the deficiency and shall, to the extent practicable, provide that person the opportunity to remedy or explain the deficiency. If that person submits further information that continues to be unsatisfactory, or this information is not submitted within the applicable time limits, the Department may, subject to section 782(e), disregard all or part of the original and subsequent responses, as appropriate.
Section 782(e) of the Act states that the Department shall not decline to consider information deemed ``deficient'' under section 782(d) if: (1) The information is submitted by the established deadline; (2) the information can be verified; (3) the information is not so incomplete that it cannot serve as a reliable basis for reaching the applicable determination; (4) the interested party has demonstrated that it acted to the best of its ability; and (5) the information can be used without undue difficulties.
Furthermore, section 776(b) of the Act states that if the Department ``finds that an interested party has failed to cooperate by not acting to the best of its ability to comply with a request for information from the administering authority or the Commission, the administering authority or the Commission * * *, in reaching the applicable determination under this title, may use an inference that is adverse to the interests of that party in selecting from among the facts otherwise available.'' See also, Statement of Administrative Action (``SAA'') accompanying the Uruguay Round Agreements Act (``URAA''), H.R. Rep. No. 103-316, Vol. 1 at 870 (1994).
Adverse inferences are appropriate ``to ensure that the party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully.'' See SAA; Mannesmannrohren-Werke AG v. United States, 77 F. Supp. 2d 1302 (CIT 1999). The Court of Appeals for the Federal Circuit (``CAFC''), in Nippon Steel Corporation v. United States, 337 F.3d 1373, 1382 (Fed. Cir. 2003) (``Nippon Steel''), provided an explanation of the ``failure to act to the best of its ability'' standard, stating that the ordinary meaning of ``best'' means ``one's maximum effort,'' and that the statutory mandate that a respondent act to the ``best of its ability'' requires the respondent to do the maximum it is able to do. Id. The CAFC acknowledged, however, that ``deliberate concealment or inaccurate reporting'' would certainly be sufficient to find that a respondent did not act to the best of its ability, although it indicated that inadequate responses to agency inquiries ``would suffice'' as well. Id. Compliance with the ``best of the ability'' standard is determined by assessing whether a respondent has put forth its maximum effort to provide the Department with full and complete answers to all inquiries in an investigation. Id. The CAFC further noted that while the standard does not require perfection and recognizes that mistakes sometimes occur, it does not condone inattentiveness, carelessness, or inadequate record keeping. Id.
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Lian Heng
For these preliminary results, in accordance with sections 776(a)(2)(B)(C) and (D) of the Act, we have determined that the use of AFA is appropriate for exports of subject merchandise for a certain period from Lian Heng.
On July 7, 2006, the Department found that application of AFA to Lian Heng, pursuant to section 781(b)(1) of the Act, was appropriate. See Circumvention Inquiry. Specifically, the Department found that under section 781(b)(1)(A) of the Act, the frozen fish fillets exported to the United States by Lian Heng were the same class or kind of merchandise subject to the Order. In addition, the Department found that under sections 781(b)(1), (2), and (3) of the Act, Lian Heng circumvented the Order by importing Vietnamese-origin whole live fish into Cambodia, where it was subsequently processed and completed into frozen fish fillets for export to the United States. Thus, pursuant to section 781(b) of the Act, frozen fish fillets processed in Cambodia by Lian Heng from Vietnamese-origin whole, live fish for export to the United States were included in the antidumping duty order on frozen fish fillets from Vietnam. Id. Furthermore, the Department found that, under section 781(b)(1)(D) of the Act, based on Petitioners' record evidence, and as AFA due to Lian Heng's failure to provide data that could be verified, the value of the Vietnamese-origin whole, live fish is significant compared to the value of the frozen fish fillets. Id. Therefore, pursuant to section 781(b)(1)(E) of the Act, the Department determined that it was appropriate and necessary to take action to prevent Lian Heng from circumventing the antidumping duty order on frozen fish fillets from Vietnam. Id.
In its determination in the Circumvention Inquiry, the Department also stated that, in accordance with section 733(d) of the Act, the Department would continue to direct CBP to suspend liquidation and to
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require a cash deposit of estimated duties, at the Vietnam-wide rate, on all unliquidated entries of frozen fish fillets produced by Lian Heng that were entered, or withdrawn from warehouse, for consumption from October 22, 2004, the date of initiation of the circumvention inquiry, through July 15, 2005. However, for all entries of frozen fish fillets produced by Lian Heng entered on or after July 16, 2005, the Department would direct CBP to allow Lian Heng to certify that no Vietnamese-origin fish was used in the production of the frozen fish fillets. For any entries of frozen fish fillets accompanied by such certification, CBP would not be requested to suspend liquidation, or require a cash deposit of estimated duties at the Vietnam-wide rate. Without such certification, however, CBP would be requested to suspend liquidation the entries of frozen fish fillets and to require a cash deposit of estimated duties, at the Vietnam-wide rate of 63.88 percent. See Circumvention Inquiry. i. Period 1: October 22, 2004 through July 31, 2005
During the course of this review and at verification, Lian Heng was unable to provide verifiable data supporting the country of origin of the whole fish used in its production of frozen fish fillets for the time period October 22, 2004 through July 31, 2005 (``Period 1''). At verification, the Department examined Lian Heng's Hazard Analysis Critical Control Point \16\ program documents, and other records Lian Heng maintained in its normal course of business supporting its whole fish country of origin.
\16\ Details regarding this program can be found at http://www.cfsan.fda.gov/lrd/haccp.html .
With respect to the frozen fish fillets produced by Lian Heng during Period 1, because Lian Heng was unable, throughout the course of this review, to provide data to support the country of origin of the fish used in its production of frozen fish fillets, the Department finds that Lian Heng failed to provide the information in a timely manner and in the form requested and significantly impeded this proceeding, pursuant to sections 776(a)(2)(B) and (C) of the Act. Furthermore, Lian Heng's data regarding the country of origin of its whole fish consumption during Period 1 could not be supported at verification. By Lian Heng providing export data which could not be affirmed at verification regarding the country of origin of its whole fish consumption during Period 1, the Department also finds that the application of facts available is warranted, in accordance with 776(a)(2)(D) of the Act.
Therefore, for these preliminary results, with respect to the frozen fish fillets produced by Lian Heng for Period 1, the Department determines that it is appropriate to use facts otherwise available in reaching the applicable determination in accordance with sections 776(a)(2)(B), (C) and (D) of the Act.
Section 776(b) of the Act provides that, if the Department finds that an interested party ``has failed to cooperate by not acting to the best of its ability to comply with a request for information,'' the Department may use information that is adverse to the interests of that party as facts otherwise available. An adverse inference may include reliance on information derived from the petition, the final determination in the investigation, any previous review, or any other information placed on the record. See section 776(b) of the Act.
For these preliminary results, the Department finds that Lian Heng has failed to cooperate to the best of its ability. Specifically, the Department finds that Lian Heng claimed that the whole fish it purchased and used in its production of frozen fish fillets for Period 1 were not from Vietnam, but it could not provide verifiable data at verification to support its claim regarding the country of origin of the purchased whole fish at issue. Thus, the Department finds that Lian Heng ``deliberately concealed or inaccurately reported'' the country of origin for its purchased whole fish during Period 1 and, therefore, Lian Heng did not put forth its maximum effort to provide the Department with full and complete answers to all inquiries in this proceeding. Pursuant to section 776(b) of the Act and Nippon Steel, the Department finds that Lian Heng did not act to the best of its ability. Because Lian Heng asserted in its Q&V questionnaire response that it had no sales of subject merchandise during Period 1, it did not report its U.S. sales or factors of production information. Because Lian Heng was not able at verification to demonstrate that its sales in Period 1 were not subject merchandise, the Department has once again determined as AFA that these sales are of subject merchandise for which a dumping margin must be determined. In the absence of Lian Heng's sales data, and Lian Heng's failure to cooperate to the best of its ability, the Department is forced to resort to AFA.
As AFA, the Department has selected the rate of 63.88 percent established in the investigation of this Order. This rate was the highest margin calculated based on the information in the petition adjusted by the Department to be used as the AFA rate and applied to the Vietnam-wide entity in the investigation. See Notice of Final Antidumping Duty Determination of Sales at Less Than Fair Value and Affirmative Critical Circumstances: Certain Frozen Fish Fillets from the Socialist Republic of Vietnam, 68 FR 37116 (June 23, 2003) (``FFF Final Results''). See, also, Memorandum to Edward C. Yang, Director, Office IX, AD/CVD Enforcement III, through James C. Doyle, Program Manager, Office IX, from Alex Villanueva, Senior Case Analyst, Office 9, Subject: Preliminary Determination in the Investigation of Certain Frozen Fish Fillets from the Socialist Republic of Vietnam (``Vietnam'')--Corroboration Memorandum, dated January 24, 2003 (``Investigation Corroboration Memo'').
Since this is secondary information, section 776(c) of the Act requires that the Department corroborate, to the extent practicable, secondary information used as facts available. Secondary information is defined as ``information derived from the petition that gave rise to the investigation or review, the final determination concerning the subject merchandise, or any previous review under section 751 concerning the subject merchandise.'' See SAA at 870 and 19 CFR 351.308(d). The SAA further provides that the term ``corroborate'' means that the Department will satisfy itself that the secondary information to be used has probative value. See SAA at 870. Thus, to corroborate secondary information, the Department will, to the extent practicable, examine the reliability and relevance of the information used.
During the original investigation of this case, we found that the information supplied by Petitioners was reliable and relevant because it was based upon information from public sources including government publications regarding the processing of live fish into fish fillets from Vietnam. In addition, Petitioners provided information from Agifish, the largest fish fillets exporter from Vietnam, which the Department verified in the underlying investigation as well as information used by the International Trade Commission in making its final injury determination. In this review, we found that this rate (63.88 percent) falls below the highest calculated transaction-specific dumping margin of one of the mandatory respondents, and thus within the range of margins in this review. See Memorandum to File, through Alex Villanueva, Program Manager, Office 9,
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from Cindy Lai Robinson, Senior Case Analyst, Office 9, Subject: Corroboration of the Adverse Facts Available Rate for the Preliminary Results in the 3rd Antidumping Duty Administrative Review of Certain Frozen Fish Fillets from the Socialist Republic of Vietnam (``AR3 Coroboration Memo''), dated August 31, 2007. In the absence of contrary evidence, the Department continues to find the information relevant and reliable. This rate was also selected as an AFA rate in the first and the second reviews of this case. See FFF Final Results. See, also, Certain Frozen Fish Fillets From the Socialist Republic of Vietnam: Final Results of the First Administrative Review, 71 FR 14170 (March 21, 2006) (``FFF1 Final Results''); Notice of Final Results of the Second Administrative Review: Certain Frozen Fish Fillets and Socialist Republic of Vietnam, 72 FR 13242 (March 21, 2007) (``FFF2 Final Results''); and Investigation Corroboration Memo.
As this rate is both reliable and relevant, we determine that it has probative value, and is thus in accordance with section 776(c), requiring that secondary information be corroborated to the extend practicable (i.e., that it has probative value). ii. Period 2: August 1, 2005 Through July 31, 2006
For the frozen fish fillets produced by Lian Heng during August 1, 2005 through July 31, 2006 (``Period 2''), Lian Heng was able to demonstrate at verification that the origin of the whole fish Lian Heng used to produce fish fillets was from Cambodia. Accordingly, for Period 2, the Department will continue to allow Lian Heng to certify that no Vietnamese-origin fish was used in the production of the frozen fish fillets. For any entries of frozen fish fillets accompanied by such certification, CBP will continue to not suspend liquidation, or require a cash deposit of estimated duties. Without such certification, however, CBP will suspend liquidation the entries of frozen fish fillets and require a cash deposit of estimated duties, at Lian Heng's AFA rate of 63.88 percent. See Circumvention Inquiry.
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CATACO
For these preliminary results, in accordance with sections 776(a)(2)(A) and 776(a)(2)(B) of the Act, we have determined to continue to apply the individual AFA rate of 80.88 percent to CATACO.
On October 12, 2006, the Department sent CATACO a Q&V questionnaire with a response deadline of October 26, 2006.\17\ CATACO did not respond to the Department's Q&V questionnaire by October 26, 2006. On November 3, 2006, the Department granted CATACO a second opportunity and sent CATACO a second Q&V questionnaire with a new response deadline of November 17, 2006. In this letter, the Department also extended the Separate-Rate Certification deadline to coincide with the Separate-Rate Status Application deadline of December 11, 2006.\18\ CATACO did not submit a response to the Q&V questionnaire by November 17, 2006, nor did it submit the Separate-Rate Certification/Application by December 11, 2006.
\17\ In this letter, the Department indicated that a full and accurate response to the Q&V questionnaire from all participating respondents was necessary to ensure that the Department had the requisite information to appropriately select mandatory respondents. The Department also stated that if a firm had no exports during the POR, it should submit a statement to that effect, or the Department may have to assign a margin based on AFA. In this letter, the Department further stated that if a firm wished to be considered for a separate rate, it must respond to the Q&V questionnaire as well as provide the Department's Separate-Rate Certification, or Separate- Rate Status Application, as appropriate, by the appropriate deadline. In other words, the Department will not give consideration to any Separate-Rate Status request made by parties that failed to respond to the Q&V questionnaire within the established deadlines.
\18\ In this letter, the Department reiterated that in order to receive consideration for a separate rate, a firm must respond to the Q&V questionnaire in addition to providing the Department's Separate-Rate Certification, or Separate-Rate Status Application. Moreover, the Department stated that if a firm failed to cooperate with the Department by not acting to the best of its ability to comply with the requested information, the Department may use information that is adverse to the company's interest in conducting its analysis.
Despite the fact that CATACO was given two opportunities to submit its Q&V questionnaire response and Separate-Rate Certification/ Application, CATACO did not respond to the Department's Q&V questionnaire, nor did it submit a Separate-Rate Certification/ Application.\19\ Furthermore, at no point in the administrative review did CATACO submit comments regarding its status in this proceeding. Based upon CATACO's refusal to submit any Q&V response and Separate- Rate Certification/Application, the Department finds that CATACO failed to provide the information in a timely manner and in the form requested and significantly impeded this proceeding, pursuant to sections 776(a)(2)(B) and (C) of the Act. The Department explicitly stated that a full and accurate response to the Q&V Questionnaire from all participating respondents was needed to ensure that it had the requisite information to appropriately select mandatory respondents. Because CATACO failed to respond to the Department's Q&V questionnaire, it significantly impeded this proceeding. Therefore, the application of facts available is warranted, in accordance with sections 776(a)(2)(B) and 776(a)(2)(C) of the Act. In addition, by failing to submit a Separate-Rate Certification/Application, CATACO failed to demonstrate an absence of government control with respect to its export operations.
\19\ For both Q&V letters sent out by the Department on October 12 and November 3, 2006, the Department did not receive any undeliverable notice from the mail carrier, FEDEX.
For these preliminary results, the Department finds that the Vietnam-wide entity, including CATACO, has failed to cooperate to the best of its ability by its refusal to respond to the Department's two Q&V questionnaires, which was needed for purposes of selecting mandatory respondents in this review. Therefore, we are applying an adverse inference to the Vietnam-wide entity and CATACO \20\ in accordance with section 776(b) of the Act.
\20\ As discussed in the ``Separate Rates Determination'' section below, because CATACO did not provide a Q&V response and a Separate-Rate Application/Certification, CATACO is not eligible for a separate rate.
While it would be consistent with the Department's normal practice for CATACO to be subject to the same rate as all other exporters that are part of the Vietnam-wide entity, the Department determined, as AFA, it is appropriate to continue to apply CATACO's individual rate of 80.88 percent calculated in the first and the second administrative reviews of this Order to account for the the Department's prior findings regarding reimbursement.
In the first administrative review of this Order, the Department found at the verification that CATACO had reimbursement agreements that had no expiration date with its importer(s) and therefore, the Department assigned to CATACO's sales of subject merchandise an individual rate of 80.88 percent as an AFA rate, based on the highest established rate on the record of that proceeding. See FFF1 Final Results at Comments 1 and 2. In addition, in that review, to ensure proper assessment, the Department adjusted the total volume of the examined sales for CATACO as outlined in the memorandum ``Certain Frozen Fish Fillets from the Socialist Republic of Vietnam (``Vietnam''): Can Tho Agricultural and Animal Products Import Export Company (``CATACO'') Analysis for the Final Results of the Administrative Review,'' dated March 13, 2006 (``CATACO Analysis Memo'').
During the course of the second administrative review, CATACO
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withdrew from participation in the review. Because the agreements had no expiration date, as AFA, the Department presumed that CATACO's agreement to reimburse its importer(s) continued throughout the POR. See Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Preliminary Results of Antidumping Duty Administrative Review, 71 FR 53387 (September 11, 2006). See, also, FFF2 Final Results.
In this third administrative review, CATACO did not respond to the Department's two Q&V questionnaires dated October 12 and November 3, 2006, respectively. Consistent with the Department's findings in FFF1 Final Results and FFF2 Final Results, CATACO will continue to receive, as AFA, the individual rate of 80.88 percent, which is the highest established rate on the record of this proceeding (i.e., the Vietnam- wide rate plus an amount to account for the reimbursement). Therefore, inclusive in our adverse inference is a presumption that CATACO continued to reimburse antidumping duties during this POR.
This AFA rate (80.88 percent) was calculated partly based on information in the investigation and partly based on information in the first administrative review. During the investigation, the Department calculated an AFA rate of 63.88 percent \21\ based on the information in the petition. During the first administrative review, the Department determined that, based on its verification findings at CATACO, it is appropriate to add an amount to the Vietnam-wide rate (i.e., 63.88 percent) to account for CATACO's reimbursement. The 80.88 percent rate was applied to CATACO as an AFA rate in the first and second administrative reviews. See FFF1 Final Results and FFF2 Final Results.
\21\ As stated above in the ``Lian Heng'' section, this rate was also used as the Vietnam-wide rate in the investigation, and first and second administrative reviews.
As explained in the ``Lian Heng'' section, above, the Department finds that the 63.88 percent AFA rate (and Vietnam-wide rate) calculated in the investigation is still relevant and reliable in this review. With respect to the reimbursement rate, the Department also finds it relevant and reliable because the Department found that CATACO's reimbursement scheme had no expiration date. Absent any evidence to the contrary, following the Department's past practice, the Department continues to find this rate relevant and reliable. See VN Shrimp.
As both the Vietnam-wide rate and the reimbursement rate are both reliable and relevant, we determine that it has probative value, and is thus in accordance with section 776(c) of the Act, requiring that secondary information be corroborated to the extent practicable (i.e., that it has probative value).
Non-Market Economy Country Status
In every case conducted by the Department involving Vietnam, Vietnam has been treated as a non-market economy (``NME'') country. In accordance with section 771(18)(C)(i) of the Act, any determination that a foreign country is an NME country shall remain in effect until revoked by the administering authority. See Final Determination of Sales at Less Than Fair Value: Certain Frozen and Canned Warmwater Shrimp From the Socialist Republic of Vietnam, 69 FR 71005 (December 8, 2004). See, also, FFF2 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 8, 2007, the Department sent interested parties a letter requesting comments on surrogate country selection and information pertaining to valuing factors of production (``FOP''). On March 12, 2007, Petitioners requested a four-week extension and QVD requested a two-month extension of time to file comments on surrogate country selection, information to value FOPs, and submission of factual information. On March 14, 2007, the Department granted a six-week extension to all interested parties for submitting their comments, factual information, and information pertaining to valuing FOPs, to April 30, 2007.
On April 13, 2007, East Sea requested a two-week extension for submitting surrogate country, surrogate values, and factual information. On April 19, 2007, the Department granted a full extension until May 14, 2007, to all interested parties for submitting their comments, factual information, and information pertaining to valuing FOPs. East Sea, QVD, and the Petitioners submitted surrogate country comments and surrogate value data between May 14, 2007, and June 4, 2007. On July 20, 2007, East Sea submitted pre-preliminary results of review comments on surrogate value data for certain packing materials. On July 27, 2007, Petitioners also submitted pre-preliminary results of review comments regarding certain surrogate value information.
Separate Rates Determination
Designation of a country as an NME remains in effect until it is revoked by the Department. See section 771(18)(C) of 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 (``Sparklers''), 56 FR 20588 (May 6, 1991), as amplified by the Notice of Final Determination of Sales at Less Than Fair Value: Silicon Carbide from the People's Republic of China, 59 FR 22585 (May 2, 1994) (``Silicon Carbide'').
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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.
It is the Department's policy to evaluate separate rates questionnaire responses each time a respondent makes a separate rate 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).
For these preliminary results, we only examined the Separate-Rate Certification/Application for the two mandatory companies, East Sea and QVD.\22\ The evidence submitted by the
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two mandatory respondents includes business licenses, financial statements, and narrative information regarding government laws and regulations on corporate ownership, and the companies' operations and selection of management. The evidence provided by them supports a finding of a de jure absence of governmental control over their export activities. Thus, we believe that the evidence on the record supports a preliminary finding of an absence of de jure government control based on: (1) An absence of restrictive stipulations associated with the exporter's business license; and (2) the legal authority on the record decentralizing control over the respondents.
\22\ As explained above, the Department is applying rate of 80.88 percent (the Vietnam-wide rate plus an amount to account for reimbursement) to CATACO in this review because CATACO failed to respond to the Department's Q&V Questionnaire and failed to submit Separate-Rate Application/Certification. Accordingly, CATACO is not eligible for a separate rate. As discussed above, Lian Heng, the third-country reseller in Cambodia, received a company-specific AFA rate of 63.88 percent of its sale of merchandise under review during Period 1 (October 22, 2004 through July 31, 2005), because it failed to provide verifiable information regarding the country of origin of its purchased whole fish input used to produce frozen fish fillets, in accordance with the Department's past practice. See, e.g., Notice of Preliminary Determination of sales at Less Than Fair Value and Postponement of Final Determination: Wooden Bedroom Furniture From the People's Republic of China, 69 FR 35312 (June 24, 2004) (the Department does not conduct further separaterates test for respondents wholly owned by companies outside the PRC).
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Absence of De Facto Control
The absence of de facto governmental control over exports is based on whether a company: (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 and 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 their questionnaire responses and Separate-Rate Certification and Separate-Rate Application, where applicable, QVD and East Sea submitted evidence indicating an absence of de facto governmental 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 manager is selected by the board of directors or company employees, and the general manager appoints 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 East Sea and QVD have established prima facie that they qualify for separate rates under the criteria established by Silicon Carbide and Sparklers.
East Sea and QVD participated fully in this review and are receiving a preliminary antidumping duty rate of 0 percent and 14.59 percent, respectively. As noted above, Agifish, Da Nang, Thuan Hung, and Vinh Hoan have preliminarily been rescinded and therefore, they are not eligible for a separate rate. In addition, CATACO is not eligible for a separate rate because it failed to provide the information necessary to conduct a separate rate analysis and is receiving an AFA rate in this review.
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 Paul Walker, Senior Analyst, Office 9: Antidumping Duty Administrative Review of Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Surrogate Values for the Preliminary Results, August 31, 2007 (``Factor Valuation Memo'').
As discussed in the ``Separate Rates'' section, above, the Department considers Vietnam to be an NME country. The Department has treated Vietnam as an NME country in all previous antidumping proceedings. In accordance with section 771(18)(C)(i) of the Act, any determination that a foreign country is an NME country shall remain in effect until revoked by the administering authority. None of the parties to this proceeding contested such treatment. Accordingly, we treated Vietnam as an NME country for purposes of this review and calculated NV, pursuant to section 773(c) of the Act, by valuing the FOPs in a surrogate country.
The Department determined that Bangladesh, Pakistan, India, Indonesia, and Sri Lanka are countries comparable to Vietnam in terms of economic development.\23\ 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, through James C. Doyle, Office Director, Office 9, Import Administration, and Alex Villanueva, Program Manager, Office 9, from Michael Holton, Senior Analyst, Re: 3rd Antidumping Duty Administrative Review of Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Selection of a Surrogate Country (August 31, 2007). 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.
\23\ See Memorandum from Ron Lorentzen, Director, Office of Policy, to Alex Villanueva, Program Manager, China/NME Group, Office 9: Antidumping Administrative Review of Certain Frozen Fish Fillets (``Frozen Fish'') from the Socialist Republic of Vietnam: Request for a List of Surrogate Countries (January 22, 2007).
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':
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(A) Members of a family, including brothers and sisters (whether by the whole or half blood), spouse, ancestors, and lineal descendants.
(B) Any officer or director of an organization and such organization.
(C) Partners.
(D) Employer and employee.
(E) Any person directly or indirectly owning, controlling, or holding with power to vote, 5 percent or more of the outstanding voting stock or shares of any organization and such organization.
(F) Two or more persons directly or indirectly controlling, controlled by, or under common control with, any person.
(G) Any person who controls any other person and such other person.
Additionally, section 771(33) of the Act stipulates that: ``For purposes of this paragraph, a person shall be considered to control another person if the person is legally or operationally in a position to exercise restraint or direction over the other person.''
East Sea
Piazza's Seafood World, LLC. (``Piazza'') is a U.S. importer and reseller of seafood products. During the POR, Piazza imported, then resold, the subject merchandise which it purchased from East Sea to its unaffiliated customers. Piazza is also East Sea's principal owner. In addition, the President and a board member of East Sea was also employed as an operations consultant and acted as a manager for Piazza during seven months of the POR. Because Piazza directly owns, controls, and holds with power to vote, more than 5 percent of the outstanding shares of East Sea, Piazza and East Sea are affiliated pursuant to section 771(33)(E) of the Act. In addition, because Piazza and East Sea share a common officer who is in a position to exercise control over both companies, the Department finds that Piazza and East Sea are affiliated, pursuant to section 771(33)(G) of the Act. Therefore, the Department based U.S. price on the constructed export price (``CEP'') for East Sea's sales through Piazza to its first unaffiliated U.S. customer.
QVD
In the final results of the second antidumping duty administrative review, the Department determined that QVD, QVD Dong Thap, Thuan Hung, and QVD Choi Moi Farming Cooperative (``QVD Choi Moi'') should be collapsed as a single entity pursuant to sections 771(33)(A), (B), (E), (F), and (G) of the Act and 19 CFR 351.401(f). See FFF2 Final Results; see, also, Supplemental Questionnaire at Attachment II (Memorandum to James C. Doyle, Director, Office 9, through Alex Villanueva, Program Manager, Office 9, from Julia Hancock, International Trade Analyst, Office 9, Subject: 2nd Administrative Review of the Antidumping Duty Order on Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Affiliation & Collapsing (``AR2 Affiliation & Collapsing Memo''), dated August 31, 2006) and Attachment III (referencing the FFF2 Final Results I&D). The Department also determined that QVD USA LLC (``QVD USA'') is affiliated with QVD, QVD Dong Thap, Thuan Hung, and QVD Choi Moi, pursuant to sections 771(33)(A), (B), (E), (F), and (G) of the Act. Therefore, the Department determined to calculate a CEP for QVD, QVD Dong Thap, Thuan Hung, QVD Choi Moi, and QVD USA's sales through QVD USA to its first unaffiliated U.S. customer. See FFF2 Final Results. See, also, Supplemental Questionnaire at Attachment III (referencing the FFF2 Final Results I&D).
In QVD's supplemental section A response, it stated that ``{d{time} uring the {3rd administrative review{time} POR there were no changes in corporate structures of any of the QVD companies or affiliates. There were no changes from the 2nd administrative review in the capital structure, scope of operations, affiliations, production capacity, ownership or management.'' See Section A Supplemental Questionnaire Response of QVD Food Co. (``SAQR1'') at 12, dated June 1, 2007.
For these preliminary results, based on the information on the record of this proceeding, the Department continues to find that QVD, QVD Dong Thap, Thuan Hung and QVD Choi Moi should be collapsed and treated as a single entity. See, e.g., FFF2 Final Results; See, e.g., also, Supplemental Questionnaire at Attachment II (AR2 Affiliation & Collapsing Memo) and Attachment III (FFF2 Final Results I&D). See, also, SAQR1 at 12. 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.
Fair Value Comparisons
To determine whether sales of the subject merchandise made by East Sea or QVD 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.
East Sea: Constructed Export Price
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 East Sea's U.S. sales through its U.S. affiliate, Piazza, to unaffiliated U.S. customers.
We made adjustments to the gross unit price for rebates, foreign inland freight, foreign brokerage and handling charges, international freight, U.S. inland freight, 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, and inventory carrying 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 Memorandum to the File, through Alex Villanueva, Program Manager, Office 9, from Paul Walker, Senior Analyst, Subject: 3rd Administrative Review of Certain Frozen Fish Fillets from the Socialist Republic of Vietnam (``Vietnam''): Surrogate Values for the Preliminary Results, (August 31, 2007) (``Surrogate Value Memo''). Where applicable, we used the actual reported expense for those movement expenses provided by market economy (``ME'') suppliers and paid for in ME currency.
QVD: Export Price
For QVD'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 this 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.
QVD: Constructed Export Price
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. We calculated CEP for certain U.S. sales
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made by QVD through its U.S. affiliates to unaffiliated U.S. 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.
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 East Sea and QVD, pursuant to sections 773(c)(3) and (4) of the Act and 19 CFR 351.408(c).
As the basis for NV, East Sea and QVD provided FOPs used in each of the stages for processing frozen fish fillets. QVD also reported that it is an integrated producer (i.e., it farms and processes the whole fish input). QVD provided its affiliated farm (Choi Moi)'s FOP information used in each of the production stages, from the fingerling stage to the frozen fish fillet processing stage, separately.
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. If the NME respondent is an integrated producer, we take into account the factors utilized in each stage of the production process. For example, in a previous aquaculture case, one of the respondents, Zhanjiang Guolian, was a fully integrated firm, and the Department valued both the farming and processing FOPs because Zhanjiang Guolian bore all the costs related to growing the shrimp. See Notice of Final Determination at Less Than Fair Value: Certain Frozen and Canned Warmwater Shrimp From the People's Republic of China, 69 FR 70997 (December 8, 2004) and accompanying Issues and Decision Memorandum at Comment 9(e).
In this case, we are valuing those inputs reported by QVD that were used to produce the main input to the processing stage (whole fish) when calculating NV, whether they were farmed from Choi Moi or purchased by QVD.
To calculate NV, we valued East Sea's and QVD'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 Import Administration's website at 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, 2005, through July 31, 2006:
Certain Frozen Fish Fillets From Vietnam
Weighted- average Manufacturer/exporter
margin (percent)
CATACO..................................................
80.88 East Sea................................................
0 Lian Heng \24\..........................................
63.88 QVD.....................................................
14.59 Vietnam-wide Rate \25\..................................
63.88
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
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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.
\24\ This AFA rate is applied only to the merchandise under review exported by Lian Heng from October 22, 2004, through July 31, 2005, because it is considered to be produced from Vietnam-origin fish. See ``Application of Adverse Facts Available'' section above.
\25\ The Vietnam-wide rate includes all entries of frozen fish fillets of the species Pangasius Bocourti, Pangasius Hypophthalmus (also known as Pangasius Pangasius), and Pangasius Micronemus produced by CATACO during the POR. As stated above in the ``CATACO'' section, CATACO continues to receive an AFA rate of 80.88 percent which is the Vietnam-wide rate plus an amount to account for reimbursement.
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 two mandatory respondents, East Sea and QVD, 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 duties on all entries of subject merchandise by that importer. For the respondents receiving dumping rates based upon AFA (i.e., CATACO, and Lian Heng for the period October 22, 2004, through July 31, 2005), the Department, upon completion of these reviews, will instruct CBP to liquidate entries for the POR as specified above in the ``Period of Review'' section of this notice pursuant to 19 CFR 351.212(b). The Department will issue appraisement instructions directly to CBP upon the completion of the final results of these administrative reviews.
\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, the cash deposit rate will be that established in the final results of this review (except, if the rate is zero or de minimis, no cash deposit will be required); (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. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing this determination in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Dated: August 31, 2007. David M. Spooner, Assistant Secretary for Import Administration.
[FR Doc. E7-18490 Filed 9-18-07; 8:45 am]
BILLING CODE 3510-DS-P
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