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Certain Frozen Fish Fillets From the Socialist Republic of Vietnam: Final Results of the Sixth Antidumping Duty Administrative Review and Sixth New Shipper Review

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AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On September 15, 2010, the Department of Commerce (“Department”) published the Preliminary Results of the sixth administrative review and sixth new shipper review of the antidumping duty order on certain frozen fish fillets (“frozen fish fillets”) from the Socialist Republic of Vietnam (“Vietnam”).[1] We Start Printed Page 15942gave interested parties an opportunity to comment on the Preliminary Results and, based upon our analysis of the comments and information received, we made changes to the margin calculations for the final results of these reviews. The final weighted-average margins are listed below in the “Final Results of the Reviews” section of this notice. The period of review (“POR”) is August 1, 2008, through July 31, 2009.

DATES:

Effective Date: March 22, 2011.

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FOR FURTHER INFORMATION CONTACT:

Emeka Chukwudebe or Javier Barrientos, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-0219 or (202) 482-2243, respectively.

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SUPPLEMENTARY INFORMATION:

Case History

As noted above, on September 15, 2010, the Department published the Preliminary Results of this administrative and new shipper review. On September 16, 2010, and January 24, 2011, officials from the Government of Vietnam met with officials from the Department.[2] We extended the deadlines for submission of surrogate value comments and case briefs.[3] On October 7, 2010, majority staff members from the Senate Finance Committee met with officials from the Department.[4] On November 5, 2010, following the recent decision in Dorbest,[5] the Department placed wage rate data on the record for comments.[6] Between November 25, 2010, and November 30, 2010, we conducted verification of Vinh Hoan Corporation (“Vinh Hoan”). On December 23, 2010, the Department fully extended the time limit for completion of the final results of this administrative review and new shipper review.[7] On January 24, 2011, the Department placed new information on the record and invited comments from interested parties.

On January 26, 2011, the Department held a public hearing.[8] On February 8, 2011, counsel for Petitioners [9] met with officials from the Department.[10] On February 17, 2011, counsel for the respondents [11] met with officials from the Department.[12] We invited interested parties to comment on the Preliminary Results. Between November 22, 2010, and February 14, 2011, we received case and rebuttal briefs from Petitioners, the respondents, separate rate respondents,[13] as well as other interested parties [14] in these reviews.[15] As a result of our analysis, we have made changes to the Preliminary Results.

Scope of the Order [16]

The product covered by the order is frozen fish fillets, including regular, shank, and strip fillets and portions thereof, whether or not breaded or marinated, of the species Pangasius Bocourti, Pangasius Hypophthalmus (also known as Pangasius Pangasius), and Pangasius Micronemus. Frozen fish fillets are lengthwise cuts of whole fish. The fillet products covered by the scope include boneless fillets with the belly flap intact (“regular” fillets), boneless fillets with the belly flap removed (“shank” fillets), boneless shank fillets cut into strips (“fillet strips/finger”), which include fillets cut into strips, chunks, blocks, skewers, or any other shape. Specifically excluded from the scope are frozen whole fish (whether or not dressed), frozen steaks, and frozen belly-flap nuggets. Frozen whole dressed fish are deheaded, skinned, and eviscerated. Steaks are bone-in, cross-section cuts of dressed fish. Nuggets are the belly-flaps. The subject merchandise will be hereinafter referred to as frozen “basa” and “tra” fillets, which are the Vietnamese common names for these species of fish. These products are classifiable under tariff article codes 1604.19.4000, 1604.19.5000, 0305.59.4000, 0304.29.6033 (Frozen Fish Fillets of the species Pangasius including basa and tra) of the Harmonized Tariff Schedule of the United States (“HTSUS”).[17] The order covers all frozen fish fillets meeting the above specification, regardless of tariff classification. Although the HTSUS subheading is provided for convenience and customs purposes, our written description of the scope of the order is dispositive.

Analysis of Comments Received

All issues raised in the case and rebuttal briefs by parties are addressed in “Certain Frozen Fish Fillets from the Socialist Republic of Vietnam (“Vietnam”): Issues and Decision Memorandum for the Final Results,” Start Printed Page 15943(March 14, 2011) (“I&D Memo”). A list of the issues which parties raised, and to which we responded in the I&D Memo, is attached to this notice as an Appendix. The I&D Memo is a public document and is on file in the Central Records Unit (“CRU”), Main Commerce Building, Room 7046, and is accessible on the Department's Web site at http://www.trade.gov/​ia. The paper copy and electronic version of the memorandum are identical in content.

Changes Since the Preliminary Results

Based on a review of the record, verification, the hearing, as well as comments received from interested parties regarding our Preliminary Results, we have made certain revisions to the margin calculation for Vinh Hoan, Vinh Quang, and CL-Fish for the final results. For the reasons explained in the I&D Memo at Comment I, we have changed our surrogate country selection from the Philippines to Bangladesh. For all other changes to the calculations of Vinh Hoan, Vinh Quang, and CL-Fish, see the I&D Memo and company specific analysis memorandum. For changes to the surrogate values, see the I&D Memo and “Memorandum to the File, through Alex Villanueva, Program Manager, AC/CVD Operations, Office 9, from Javier Barrientos, Senior Case Analyst, and Emeka Chukwudebe, Case Analyst, AD/CVD Operations, Office 9, Sixth Antidumping Duty Administrative Review and Sixth New Shipper Review of Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Surrogate Values for the Final Results,” (March 14, 2011).

Use of Facts Available (“FA”) and Adverse Facts Available (“AFA”)

Section 776(a) of the Tariff Act of 1930, as amended (“the Act”) provides that the Department shall apply FA if (1) necessary information is not on the record, or (2) an interested party or any other person (A) withholds information that has been requested, (B) fails to provide information within the deadlines established, or in the form and manner requested by the Department, subject to subsections (c)(1) and (e) of section 782 of the Act, (C) significantly impedes a proceeding, or (D) provides information that cannot be verified as provided by section 782(i) of the Act.

Section 776(b) of the Act further provides that the Department may use an adverse inference in applying FA when a party has failed to cooperate by not acting to the best of its ability to comply with a request for information. Such an adverse inference may include reliance on information derived from the petition, the final determination, a previous administrative review, or other information placed on the record.

Based on findings at verification, we are applying partial AFA to Vinh Hoan's freight distances because the Department finds that the information necessary to calculate an accurate and otherwise reliable margin is not available on the record. Specifically, the Department could not verify the distances to transport fish from some of Vinh Hoan's farms to its processing facilities. Consequently, in accordance with 776(b) of the Act, we find that an adverse inference is necessary because Vinh Hoan did not act to the best of its ability to provide the Department with verifiable data within its exclusive control. Therefore, for the final results, pursuant to 776(a)(2)(D) of the Act, we applied partial AFA to Vinh Hoan's freight distances. See Comment 9A of the I &D Memo.

Final Partial Rescission

In the Preliminary Results, the Department preliminarily rescinded the review with respect to Acomfish and Binh An.[18] These companies reported that they had no shipments of subject merchandise to the United States during the POR. As we stated in the Preliminary Results, our examination of shipment data from U.S. Customs and Border Protection (“CBP”) for these companies confirmed that there were no entries of subject merchandise from them during the POR.[19] The Department did not receive any comments regarding the preliminary rescission of these companies claiming no shipments. Therefore, we are rescinding the administrative review with respect to Acomfish and Binh An. In addition, as explained in Comment VII of the I&D Memo, we are rescinding the review with respect to Anvifish JSC. Finally, we note that as Anvifish JSC was the only company receiving the Vietnam-Wide entity rate in the Preliminary Results, but is no longer under review, the Vietnam-Wide entity is also no longer under review.

Separate Rates

The statute and the Department's regulations do not directly address the establishment of a rate to be applied to individual companies not selected for individual examination where the Department limited its examination in an administrative review pursuant to section 777A(c)(2) of the Act. The Department's practice in this regard, in cases involving limited selection based on exporters accounting for the largest volumes of trade, has been to weight-average the rates for the selected companies excluding zero and de minimis rates and rates based entirely on AFA. Generally we have looked to section 735(c)(5) of the Act, which provides instructions for calculating the all-others rate in an investigation, for guidance when calculating the rate for respondents we did not individually examine in an administrative review. Section 735(c)(5)(A) of the Act instructs that we are not to calculate an all-others rate using any zero or de minimis margins or any margins based on total facts available. Section 735(c)(5)(B) of the Act also provides that, where all margins are zero, de minimis, or based on total FA, we may use “any reasonable method” for assigning the rate to non-selected respondents. One method that section 735(c)(5)(B) of the Act contemplates as a possibility is “averaging the estimated weighted average dumping margins determined for the exporters and producers individually investigated.”

In the Preliminary Results, the Department applied to the separate rate companies the rate calculated for the single mandatory respondent in the administrative review. For these final results, the rate calculated for the single mandatory respondent is zero. While the statute contemplates that we may use an average of the zero, de minimis and AFA rates determined in an investigation, we have available in these reviews information that would not be available in an investigation, namely rates from prior proceedings. We have determined that it is more appropriate in these reviews to use a calculated rate from a previous segment to apply to the separate rate companies as this method does not rely on zero, de minimis or FA margins and there is no reason to find that it is not reasonably reflective of potential dumping margins for the non-selected companies. See Statement of Administrative Action (“SAA”) accompanying the Uruguay Round Agreements Act, H. Doc. 316, 103d Cong., Vol. 1 (1994) at 873. In these reviews, we have three companies that qualify for a separate rate: Agifish, ESS LLC and Southern Fishery Industries Company (“South Vina”).

For the three separate rate respondents, Agifish, ESS LLC and South Vina, the most recent calculated rate from a previous administrative review that is not zero, de minimis or based on FA is $0.02 per kilogram, which was based on the calculated rate for QVD Food Company in the fourth Start Printed Page 15944administrative review. See Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Amended Final Results of the Fourth Antidumping Duty Administrative Review, 74 FR 17816 (April 17, 2009). This is similar to the method applied in the most recently completed administrative review. See Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Final Results of the Antidumping Duty Administrative Review and New Shipper Reviews, 75 FR 12726 (March 17, 2010) and accompanying Issues and Decision Memorandum.

Final Results of the Reviews

The weighted-average dumping margins for the POR are as follows:

ExporterWeighted-average margin (dollars per kilogram)
(1) Vinh Hoan$0.00
(2) Vinh Quang0.00
(3) Agifish0.02
(4) ESS LLC0.02
(5) South Vina0.02
(6) CL-Fish 200.00

Assessment

Upon issuance of the final results, the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries. The Department intends to issue assessment instructions to CBP 15 days after the date of publication of the final results of review. Pursuant to 19 CFR 351.212(b)(1), we will calculate importer-specific (or customer) per unit duty assessment rates based on the ratio of the total amount of the dumping margins calculated for the examined sales to the total entered value of those same sales. We will instruct CBP to assess antidumping duties on all appropriate entries covered by these reviews if any importer-specific assessment rate is above or de minimis.

Cash Deposit Requirements

The following cash-deposit requirements will be effective upon publication of the final results of these administrative and new shipper reviews 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 the rate established in these final results of review (except, if the rate is zero or de minimis, i.e., less than 0.5 percent, a zero cash deposit rate will be required for that company); (2) for previously investigated or reviewed Vietnamese and non-Vietnamese 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 Vietnamese exporters of subject merchandise which have not been found to be entitled to a separate rate, the cash deposit rate will be the Vietnamese-wide rate of $2.11 per kilogram; and (4) for all non-Vietnamese exporters of subject merchandise which have not received their own rate, the cash deposit rate will be the rate applicable to the Vietnamese exporters that supplied that non-Vietnamese exporter. These deposit requirements, when imposed, shall remain in effect until further notice.

Reimbursement of Duties

This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f) 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 Department's presumption that reimbursement of antidumping duties has occurred and the subsequent assessment of doubled antidumping duties.

Administrative Protective Orders

This notice also serves as a final reminder to parties subject to administrative protective order (“APO”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.

We are issuing and publishing these administrative and new shipper reviews and notice in accordance with sections 751(a)(1) and 777(i) of the Act.

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Dated: March 14, 2011.

Kim Glas,

Acting Deputy Assistant Secretary for Import Administration.

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Appendix I—Issues & Decision Memorandum

General Issues

COMMENT I: SELECTION OF SURROGATE COUNTRY

A. Economic Comparability

B. Significant Producer of the Comparable Merchandise

C. Data Considerations

COMMENT II: ZEROING

COMMENT III: LABOR RATE METHODOLOGY

COMMENT IV: SURROGATE VALUES

A. Financial Ratios

B. Salt

C. Water

D. STPP, CO Gas, PE bags, Carton, Tape, Label, Plastic Sheet, Banding, and Diesel

E. Electricity

F. Truck Freight

G. Brokerage and Handling

H. Containerization

I. By-Products

i. Fish Waste

ii. Broken Meat

iii. Fish Skins

J. Adjustment for Finished Goods Inventory

Company-Specific Issues

COMMENT V: RATE FOR SOUTH VINA

COMMENT VI: RATE FOR VINH QUANG

A. Indirect Selling Expenses

B. Movement Expenses

C. Packing Labor

COMMENT VII: RESCISSION OF ANVIFISH JSC

COMMENT VIII: CASH DEPOSIT INSTRUCTIONS FOR ESS LLC

COMMENT IX: RATE FOR VINH HOAN

A. Freight Distances for Fish

B. Farming Factors

C. Electricity and Coal for Byproducts

End Supplemental Information

Footnotes

1.  See Certain Frozen Fish Fillets From the Socialist Republic of Vietnam: Notice of Preliminary Results and Partial Rescission of the Sixth Antidumping Duty Administrative Review and Sixth New Shipper Review, 75 FR 56062 (September 15, 2010) (“Preliminary Results”).

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2.  See Memorandum to the file, from Julia Hancock, Special Assistant, Import Administration, dated September 21, 2010; see also Memorandum to the file, from James Doyle, Office Director, Import Administration, dated January 25, 2011.

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3.  See Letter from Alex Villanueva, Program Manager, Office 9, to Interested Parties: Extending Surrogate Value Submission & Briefing Schedule for 6th New Shipper and 6th Antidumping Administrative Reviews of Certain Frozen Fish Fillets from the Socialist Republic of Vietnam (September 21, 2010). See also Letter from Alex Villanueva, Program Manager, Office 9, to Interested Parties: Extending Surrogate Value Submission for 6th New Shipper and 6th Antidumping Administrative Reviews of Certain Frozen Fish Fillets from the Socialist Republic of Vietnam. (October 13, 2010). See also Memorandum For: All Interested Parties, from Emeka Chukwudebe, Case Analyst, Import Administration, dated October 22, 2010. See also Memorandum For: All Interested Parties, from Javier Barrientos, Case Analyst, Import Administration, dated November 22, 2010.

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4.  See Memorandum to the file, Re: sixth Administrative Review of Frozen Fish Fillets from the Socialist Republic of Vietnam (“Vietnam”), dated October 18, 2010.

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5.  See Dorbest Limited v. United States, 604 F.3d 1363, 1372 (Fed. Cir. 2010) (“Dorbest”).

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6.  See Memorandum to the file through James C. Doyle, Office 9 Director, and Alex Villanueva, Office 9 Program Manager, from Emeka Chukwudebe, Office 9 Case Analyst, Sixth Antidumping Duty Administrative and New Shipper Review of Certain Frozen Fish Fillets from the Socialist Republic of Vietnam (“Vietnam”): Industry-Specific Wage Rate Selection (November 5, 2010).

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7.  See Certain Frozen Fish Fillets From the Socialist Republic of Vietnam: Notice of Extension of Time Limit for the Final Results of the Sixth Antidumping Duty Administrative and New Shipper Reviews, 75 FR 80795 (December 23, 2010).

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8.  See Letter to Interested Parties from James C. Doyle, Office 9 Office Director, Sixth Antidumping Duty Administrative Review and Sixth New Shipper Review of Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Consolidated Public Hearing Schedule (January 26, 2011).

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9.  Catfish Farmers of America and the following individual U.S. catfish processors: America's Catch, Consolidated Catfish Companies, LLC dba Country Select Catfish, Delta Pride Catfish, Inc., Harvest Select Catfish, Inc., Heartland Catfish Company, Pride of the Pond, and Simmons Farm Raised Catfish, Inc. (collectively, “Petitioners”).

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10.  See Memorandum to the file, from Alex Villanueva, Program Manager, Import Administration, dated September 21, 2010.

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11.  These companies include: Vinh Hoan; Vinh Quang Fisheries Corporation (“Vinh Quang”); and CUU Long Fish Joint Stock Company (“CL-Fish”).

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12.  See Memorandum to the file, from Alex Villanueva, Program Manager, Import Administration, dated February 21, 2011.

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13.  These companies include: (1) An Giang Fisheries Import and Export Joint Stock Company (aka Agifish or AnGiang Fisheries Import and Export); (2) Anvifish Co., Ltd.; (3) Anvifish Joint Stock Company (“Anvifish JSC”), (4) East Sea Seafoods Limited Liability Company (formerly known as East Sea Seafoods Joint Venture Co., Ltd.) (“ESS LLC”); and (5) East Sea Seafoods Joint Venture Co., Ltd.

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14.  These include: (1) Richwell Group, Inc.; and 2) Vietnam Association of Seafood Exports and Producers.

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15.  At the Department's request, interested parties submitted additional comments regarding information placed on the record as a result of the Department's January 24, 2011, meeting with officials from the Government of Vietnam.

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16.  See Notice of Antidumping Duty Order: Certain Frozen Fish Fillets From the Socialist Republic of Vietnam, 68 FR 47909 (August 12, 2003) (“Order”).

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17.  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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18.  Asia Commerce Fisheries Joint Stock Company (aka Acomfish JSC) (“Acomfish”) and Binh An Seafood Joint Stock Co. (“Binh An”).

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19.  See Preliminary Results.

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20.  CL-Fish is a new shipper review, aligned with, but not part of the administrative review.

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[FR Doc. 2011-6564 Filed 3-21-11; 8:45 am]

BILLING CODE 3510-DS-P