The Department of Commerce (the “Department”) is conducting administrative and new shipper reviews (“NSRs”) of the antidumping duty order on certain frozen fish fillets (“fish fillets”) from the Socialist Republic of Vietnam (“Vietnam”).
The Department has preliminarily determined that Anvifish Joint Stock Corporation (“Anvifish”), Vinh Hoan Corporation (“Vinh Hoan”) 
, An Phu Seafood Corporation (“An Phu”), Docifish Corporation (“Docifish”) and Godaco Seafood Joint Stock Company (“Godaco”) did not sell merchandise below NV during the period of review (“POR”), August 1, 2010, through July 31, 2011. If these preliminary results are adopted in the final results, the Department will instruct U.S. Customs and Border Protection (“CBP”) to assess antidumping duties on all appropriate entries of subject merchandise during the POR. Interested parties are invited to comment on these preliminary results.
Effective Date: September 12, 2012.
FOR FURTHER INFORMATION CONTACT:
Scot Fullerton, 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 202.482.1386.
On October 3, 2011, the Department initiated the eighth administrative review of fish fillets from Vietnam with respect to 32 companies.
Also on October 3, 2011, the Department initiated the ninth NSRs of fish fillets from Vietnam with respect to An Phu, Docifish and Godaco (collectively, the “New Shipper Respondents”).
On March 15, 2012 the Department aligned the NSRs with the administrative review of fish fillets from Vietnam.
On April 4, 2012, the Department extended the time limits for these aligned reviews until August 30, 2012.
Because of the large number of exporters involved in the administrative review, the Department limited the number of respondents individually examined pursuant to section 777A(c)(2) of the Tariff Act of 1930, as amended (the “Act”), and selected Vinh Hoan and Anvifish as mandatory respondents.
The Department sent antidumping duty questionnaires to Vinh Hoan and Anvifish, as well as to the New Shipper Respondents, to which they responded in a timely manner. Between November 21, 2011 and August 13, 2012, the Department issued supplemental questionnaires to these respondents to which they responded in a timely manner. Between May 23, 2012, and August 17, 2012, the Department received surrogate country/surrogate value comments, and rebuttal comments from interested parties.
Scope of the Order
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”).
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.
Bona Fides Analysis
Consistent with the Department's practice, we examined the bona fides of the sales under review in the NSRs by the New Shipper Respondents.
In evaluating whether a sale in a NSR is commercially reasonable or typical of normal business practices, and therefore bona fide, the Department considers, inter alia, such factors as (a) the timing of the sale, (b) the price and quantity, (c) the expenses arising from the transaction, (d) whether the goods were resold at a profit, and (e) whether the transaction was made at an arm's length basis.
Accordingly, the Department considers a number of factors in its bona fides analysis, “all of which may speak to the commercial realities surrounding an alleged sale of subject merchandise.” 
In TTPC, the court also affirmed the Department's decision that any factor which indicates that the sale under consideration is not likely to be typical of those which the producer will make in the future is relevant,
and found that the weight given to each factor investigated will depend on the circumstances surrounding the sale.
Finally, in New Donghua, the CIT affirmed the Department's practice of evaluating the circumstances surrounding an NSR sale, so that a respondent does not unfairly benefit from an atypical sale and obtain a lower dumping margin than the producer's usual commercial practice would dictate.
Where the Department finds that a sale is not bona fide, the Department will exclude the sale from its export price calculations.
We found that the sales by the New Shipper Respondents were made on bona fide bases.
Based on our investigation into the bona fide nature of the sales, the questionnaire responses submitted by New Shipper Respondents, and the companies' eligibility for a separate rate (see the “Separate Rate” section below), we preliminarily determine that New Shipper Respondents have met the requirements to qualify as new shippers during this POR. Because much of the factual information used in our analysis of the bona fides of the New Shipper Respondents' transactions involves business proprietary information, the full discussion of the basis for our preliminary finding that these sales are bona fide is set forth in the respective bona fides memos.
Therefore, for the purposes of these preliminary results, we are treating the New Shipper Respondents' sales of subject merchandise to the United States as appropriate transactions for their NSRs.
Preliminary Partial Rescission of Administrative Review
Pursuant to section 351.213(d)(3) of the Department's regulations, we have preliminarily determined that seven companies made no shipments of subject merchandise during the POR—Bien Dong Seafood Company Ltd., International Development & Investment Corporation, Cuu Long Fish Joint Stock Company, Thien Ma Seafood Co., Ltd., East Sea Seafoods Limited Liability Company 
, Cantho Import-Export Seafood Joint Stock Company and Thuan An Production Trading & Services Co., Ltd. (collectively, the “No Shipment Companies”). Between November 7, 2011 and November 29, 2011, the Department received no-shipment certifications from the No Shipment Companies. In addition, according to entry statistics obtained from CBP, the No Shipment Companies made no entries of subject merchandise during the POR. Moreover, the Department issued no-shipment inquiries to CBP requesting any information for merchandise manufactured and shipped by the No Shipment Companies during the POR.
Between November 7, 2011 and November 15, 2011, the New Shipper Respondents notified the Department that they made no entries during the POR other than the entries under review in the aligned new shipper reviews. Consequently, we are preliminarily rescinding the administrative review with respect to the No Shipment Companies and the New Shipper Respondents.
Non-Market Economy Country Status
In every case conducted by the Department involving Vietnam, Vietnam has been treated as a non-market (“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.
Accordingly, the Department continues to treat Vietnam as a NME in this proceeding.
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 Sparklers 
as amplified by Silicon Carbide.
A. Absence of De Jure Control
The Department considers the following de jure criteria in determining whether an individual company may be granted a separate rate (a) an absence of restrictive stipulations associated with an individual exporter's business and export licenses, and (b) any legislative enactments decentralizing control of companies.
Although the Department has previously assigned a separate rate to all of the companies eligible for a separate rate in this review, 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.
In this review, in addition to the two mandatory respondents and the New Shipper Respondents, An Giang Agriculture and Food Import-Export Joint Stock Company (“AFIEX”), An Giang Fisheries Import & Export Joint Stock Company (“Agifish”), Asia Commerce Fisheries Joint Stock Company (“Acomfish”), Binh An Seafood Joint Stock Company (“Binh An”), Cadovimex II Seafood Import-Export and Processing Joint Stock Company (“Cadovimex II”), Hiep Thanh Seafood Joint Stock Company (“Hiep Thanh”), Hung Vuong Corporation (“Hung Vuong”), Nam Viet Corporation (“NAVICO”), NTSF Seafoods Joint Stock Company (“NTSF”), QVD Food Company Ltd. (“QVD”), Saigon Mekong Fishery Co., Ltd. (“SAMEFICO”), Southern Fisheries Industries Company Ltd. (“South Vina”) and Vinh Quang Fisheries Corporation (“Vinh Quang”) (collectively, the “Separate Rate Respondents”) submitted complete separate rate certifications or applications. The evidence submitted by these companies includes government laws and regulations on corporate ownership, business licenses, and narrative information regarding the companies' operations and selection of management. The evidence provided by these companies supports a finding of a de jure absence of government control over their export activities, based on (a) an absence of restrictive stipulations associated with the exporter's business license, and (b) the legal authority on the record decentralizing control over the respondents.
B. Absence of De Facto Control
The absence of de facto government control over exports is based on whether the respondent (a) sets its own export prices independent of the government and other exporters, (b) retains the proceeds from its export sales and makes independent decisions regarding the disposition of profits or financing of losses, (c) has the authority to negotiate and sign contracts and other agreements, and (d) has autonomy from the government regarding the selection of management.
In this review, in addition to the two mandatory respondents and the New Shipper Respondents, the Separate Rate Respondents submitted evidence indicating an absence of de facto government control over their export activities. Specifically, this evidence indicates that (a) each company sets its own export prices independent of the government and without the approval of a government authority, (b) each company retains the proceeds from its sales and makes independent decisions regarding the disposition of profits or financing of losses, (c) each company has a general manager, branch manager or division manager with the authority to negotiate and bind the company in an agreement, (d) the general managers are selected by the board of directors or company employees, and the general managers appoint the deputy managers and the manager of each department, and (e) there is no restriction on any of the companies' use of export revenues. Therefore, the Department preliminarily finds that in this review that the two mandatory respondents, the New Shipper Respondents and the Separate Rate Respondents have established that they qualify for separate rates under the criteria established by Silicon Carbide and Sparklers.
Rate for Non-Selected Companies
As noted above, there are 13 Separate Rate Respondents not selected for individual examination. The statute and the Department's regulations do not address the establishment of a rate to be applied to individual companies not selected for examination when the Department has limited its examination in an administrative review pursuant to section 777A(c)(2) of the Act. Generally we have looked to section 735(c)(5) of the Act, which provides instructions for calculating the all-others rate in an investigation, for guidance when calculating the rate for respondents not selected for individual examination. Section 735(c)(5)(A) of the Act instructs that we do not calculate an all-others rate using any zero or de minimis weighted-average dumping margins or any weighted-average dumping margins based on total facts available. Accordingly, the Department's usual practice has been to average the rates for the selected companies excluding rates that are zero, de minimis, or based entirely on facts available.
Section 735(c)(5)(B) of the Act also provides that, where all rates are zero, de minimis, or based on total facts available, 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 possible method is “averaging the estimated weighted average dumping margins determined for the exporters and producers individually investigated.”
In this review, we have calculated weighted-average dumping margins of zero or de minimis for both companies selected as mandatory respondents. In previous cases, the Department has determined that a “reasonable method” to use when, as here, the rates of the respondents selected for individual examination are zero or de minimis is to apply to those companies not selected for individual examination the average of the most recently determined rates that are not zero, de minimis, or based entirely on facts available (which may be from a prior review or new shipper review).
If any such non-selected company had its own calculated rate that is contemporaneous with or more recent than such prior determined rates, however, the Department has applied such individual rate to the non-selected company in the review in question, including when that rate is zero or de minimis.
However, all prior rates for this proceeding were calculated using the Department's zeroing methodology. The Department has stated that it will not use its zeroing methodology in administrative reviews with preliminary determinations issued after April 16, 2012.
Therefore, we will not apply any rates calculated in prior reviews to the non-selected companies in these reviews. Based on this, and in accordance with the statute and the Department's recent practice in AFBs 2012,
we determine that a reasonable method for determining the weighted-average dumping margins for the non-selected respondents in this review is to average the weighted-average dumping margins calculated for the mandatory respondents. Consequently, the rate established for the Separate Rate Respondents is a per-unit rate of $0.00 dollars per kilogram. The Separate Rate Respondents receiving this rate are identified by name in the “Preliminary Results of Review” section of this notice.
Upon initiation of the administrative review, we provided the opportunity for all companies upon which the review was initiated to complete either the separate-rate application or certification. The separate-rate application and certification were available at: http://ia.ita.doc.gov/nme/nme-sep-rate.html.
We have preliminarily determined that three 
companies did not demonstrate their eligibility for a separate rate and are properly considered part of the Vietnam-wide entity. In NME proceedings, “`rates' may consist of a single dumping margin applicable to all exporters and producers.” 
As explained above in the “Separate Rates” section, all companies within Vietnam are considered to be subject to government control unless they are able to demonstrate an absence of government control with respect to their export activities. Such companies are thus assigned a single antidumping duty rate distinct from the separate rate(s) determined for companies that are found to be independent of government control with respect to their export activities. We consider the influence that the government has been found to have over the economy to warrant determining a rate for the entity that is distinct from the rates found for companies that have provided sufficient evidence to establish that they operate freely with respect to their export activities.
Therefore, we are assigning the entity a rate of 2.11 USD/kg, the only rate ever determined for the Vietnam-wide entity in this proceeding.
A. Level of Economic Development
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 factors of production (“FOPs”), valued in a surrogate market economy (“ME”) country, or countries, considered to be appropriate by the Department. In accordance with section 773(c)(4) of the Act, in valuing FOPs, the Department shall utilize, to the extent possible, the prices or costs of FOPs in one or more ME countries that are (a) at a level of economic development comparable to that of the NME country and (b) are significant producers of comparable merchandise.
The Department considers the countries on the Surrogate Country List—Bangladesh, India, Indonesia, Nicaragua, Pakistan and the Philippines—to be comparable to Vietnam in terms of economic development.
Section 773(c)(4)(A) of the Act is silent with respect to how the Department may determine that a country is economically comparable to the NME country. As such, the Department's long standing practice has been to identify those countries which are at a level of economic development similar to Vietnam in terms of gross national income (“GNI”) data available in the World Development Report provided by the World Bank.
In this case, the GNI available are based on data published in 2010. The GNI levels for the list of potential surrogate countries ranged from $640 to $2,580.
The Department is satisfied that they are equally comparable in terms of economic development and serve as an adequate group to consider when gathering surrogate value data. Further, providing parties with a range of countries with varying GNIs is reasonable given that any alternative would require a complicated analysis of factors affecting the relative GNI differences between Vietnam and other countries, which is not required by the statute. In contrast, by identifying countries that are economically comparable to Vietnam based on GNI, the Department provides parties with a predictable practice which is reasonable and consistent with the statutory requirements. We note that identifying potential surrogate countries based on GNI data has been affirmed by the Court of International Trade (“CIT”).
B. Significant Producers of Comparable Merchandise
As we have stated in prior review determinations, there is no world production data of Pangasius frozen fish fillets available on the record with which the Department can identify producers of identical merchandise. Therefore, absent world production data, the Department's practice is to compare, wherever possible, data for comparable merchandise and establish whether any economically comparable country was a significant producer.
In this case, we have determined to use the broader category of frozen fish fillets as the basis for identifying producers of comparable merchandise. Therefore, consistent with cases that have similar circumstances as are present here, we obtained export data for each country identified in the surrogate country list. Based on 2009 export data from the United Nations Food and Agriculture Organization,
Bangladesh, India, Indonesia, Nicaragua, Pakistan and the Philippines are exporters of frozen fish fillets, and thus, significant producers.
C. Data Considerations
After applying the first two selection criteria, if more than one country remains, it is the Department's practice to select an appropriate surrogate country based on the availability and reliability of data from those countries.
In this case, the whole fish input is the most significant input because it accounts for the largest percentage of NV as fish fillets are produced directly from the whole live fish. As such, we must consider the availability and reliability of the surrogate values for whole fish on the record. This record does not contain any data for whole live fish from Nicaragua or Pakistan. Therefore, these countries will not be considered for primary surrogate country purposes at this time. However, this record does contain whole fish surrogate value data from Bangladesh, the Philippines, Indonesia and India.
An Phu placed the Bangladeshi Department of Agriculture Marketing, Ministry of Agriculture, online pangas price data (“online DAM data”) on the record.
The Department issued a letter to the Bangladeshi Department of Agriculture Marketing, requesting among other things, the collection methods of the online DAM data.
We have yet to receive a response from the Bangladeshi Department of Agriculture Marketing. The Petitioners placed the Fisheries Statistics of the Philippines, 2008-2010, published by the Philippines Bureau of Agricultural Statistics, Department of Agriculture (“Fisheries Statistics”), on the record.
Moreover, the Petitioners placed Indonesian price and quantity data from the United Nations Food and Agriculture Organization's Fisheries Global Information System (“FIGIS data”), on the record.
VASEP placed the Present Status of the Pangasius, Pangasianodon-Hypophthalmus Farming in Andhra Pradesh, India (“Pangasius Study”), on the record.
When evaluating surrogate value data, the Department considers several factors including whether the surrogate value is publicly available, contemporaneous with the POR, represents a broad market average from an approved surrogate country, is tax and duty-exclusive, and is specific to the input. There is no hierarchy; it is the Department's practice to carefully consider the available evidence in light of the particular facts of each industry when undertaking its analysis.
We note that the values submitted in these reviews are identical to the values submitted in the last administrative review with the exception of the online DAM data, which has been updated to match the POR. An analysis of these values may be found in the 7th AR Final.
As the Department already analyzed this data in the last administrative review, and no new information has been placed on the record of these reviews which would call into question the reliability of the data, consistent with the 7th AR Final, we continue to find that the online DAM data represents the best available information with which to value the whole live fish input.
Based on the analysis above, we find that the online DAM data represents the most reliable broad market average for purposes of valuing whole live fish. Therefore, for the preliminary results, the Department will select Bangladesh as the surrogate country. Moreover, we note that the record contains three financial statements from Bangladeshi producers of comparable merchandise which are contemporaneous with the POR.
Fair Value Comparisons
To determine whether sales of the subject merchandise made by Vinh Hoan, Anvifish and the New Shipper Respondents to the United States were at prices below NV, we compared each company's export price (“EP”) or constructed export price (“CEP”), where appropriate, to NV, as described below.
A. Export Price
For Vinh Hoan and the New Shipper Respondents' 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. To calculate EP, we deducted foreign inland freight, foreign cold storage, foreign brokerage and handling, foreign containerization, and international ocean freight from the starting price (or gross unit price), in accordance with section 772(c) of the Act.
B. Constructed Export Price
For Vinh Hoan's and Anvifish's CEP sales, we used the CEP methodology when the first sale to an unaffiliated purchaser occurred after importation of the merchandise into the United States. To calculate CEP, we made adjustments to the gross unit price, where applicable, for billing adjustments, rebates, foreign inland freight, international freight, foreign cold storage, foreign containerization, foreign brokerage and handling, U.S. marine insurance, U.S. inland freight, U.S. warehousing, U.S. inland insurance, other U.S. transportation expenses and U.S. customs duties. In accordance with section 772(d)(1) of the Act, we also deducted those selling expenses associated with economic activities occurring in the United States, including commissions, credit expenses, advertising expenses, indirect selling expenses, inventory carrying costs and U.S. re-packing costs. We also made an adjustment for profit in accordance with section 772(d)(3) of the Act.
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 the Respondents, pursuant to sections 773(c)(3) and (4) of the Act and section 351.408(c) of the Department's regulations.
A. Factor Valuation Methodology
In accordance with section 351.408(c)(1) of the Department's regulations, the Department will normally use publicly available information to value the FOPs. However, when a producer sources an input from a ME country and pays for it in an ME currency, the Department may value the FOP using the actual price paid for the input. During the POR, Vinh Hoan and Anvifish reported that they purchased certain inputs, and international freight, from an ME suppliers and paid for the inputs in a ME currency.
The Department has a rebuttable presumption that ME input prices are the best available information for valuing an input when the total volume of the input purchased from all ME sources during the period of investigation or review exceeds 33 percent of the total volume of the input purchased from all sources during the period.
In this case, unless case-specific facts provide adequate grounds to rebut the Department's presumption, the Department will use the weighted-average ME purchase price to value the input. Alternatively, when the volume of an NME firm's purchases of an input from ME suppliers during the period is below 33 percent of its total volume of purchases of the input during the period, but where these purchases are otherwise valid and there is no reason to disregard the prices, the Department will weight-average the ME purchase price with an appropriate SV according to their respective shares of the total volume of purchases, unless case-specific facts provide adequate grounds to rebut the presumption.
When a firm has made ME input purchases that may have been dumped or subsidized, are not bona fide, or are otherwise not acceptable for use in a dumping calculation, the Department will exclude them from the numerator of the ratio to ensure a fair determination of whether valid ME purchases meet the 33 percent threshold.
As the basis for NV, Vinh Hoan, Anvifish and the New Shipper Respondents provided FOPs used in each of the stages for producing frozen fish fillets. The Department's general policy, consistent with section 773(c)(1) of the Act, is to value the FOPs that a respondent uses to produce the subject merchandise.
To calculate NV, the Department valued the Respondents' reported per-unit factor quantities using publicly available Indonesian, Bangladeshi, Philippine and Indian surrogate values. As noted above, Bangladesh is the surrogate country source from which to obtain data to value inputs, and when data were not available from Bangladesh, we used Indonesian, Indian and Philippine sources. In selecting surrogate values, we considered the quality, specificity, and contemporaneity of the available values. As appropriate, we adjusted the value of material inputs to account for delivery costs. Specifically, we added surrogate freight costs to surrogate values using the reported distances from the Vietnam port to the Vietnam factory, or from the domestic supplier to the factory, where appropriate. This adjustment is in accordance with the decision of the CAFC in Sigma Corp. v. United States, 117 F.3d 1401, 1407-1408 (Fed. Cir. 1997). For those values not contemporaneous with the POR, we adjusted for inflation using data published in the International Monetary Fund's International Financial Statistics.
In accordance with the OTCA 1988 legislative history, the Department continues to apply its long-standing practice of disregarding surrogate values if it has a reason to believe or suspect the source data may be subsidized.
In this regard, the Department has previously found that it is appropriate to disregard such prices from India, Indonesia, South Korea and Thailand because we have determined that these countries maintain broadly available, non-industry specific export subsidies.
Based on the existence of these subsidy programs that were generally available to all exporters and producers in these countries at the time of the POR, the Department finds that it is reasonable to infer that all exporters from India, Indonesia, South Korea, and Thailand may have benefitted from these subsidies.
Additionally, we disregarded prices from NME countries. Finally, imports that were labeled as originating from an “unspecified” country were excluded from the average value, because the Department could not be certain that they were not from either an NME country or a country with general export subsidies. For further detail, see Surrogate Values Memo.
Section 773(c) of the Act, provides that the Department will value the FOPs in NME cases using the best available information regarding the value of such factors in a ME country or countries considered to be appropriate by the administering authority. The Act requires that when valuing FOPs, the Department utilize, to the extent possible, the prices or costs of FOPs in one or more ME countries that are (a) at a comparable level of economic development and (b) significant producers of comparable merchandise.
On June 21, 2011, the Department revised its methodology for valuing the labor input in NME antidumping proceedings.
In Labor Methodologies, the Department determined that the best methodology to value the labor input is to use industry-specific labor rates from the primary surrogate country. Additionally, the Department determined that the best data source for industry-specific labor rates is Chapter 6A: Labor Cost in Manufacturing, from the International Labor Organization's (“ILO”) Yearbook of Labor Statistics.
As noted above, the Department has selected Bangladesh as the surrogate country for the preliminary results. Because Bangladesh does not report labor data to the ILO, we are unable to use ILO's Chapter 6A data to value the Respondents' labor wage. However, the record does contain a labor wage rate for fishery workers in Bangladesh, published by the Bangladesh Bureau of Statistics. The Department finds this labor wage rate to be the best available information on the record. This data is publicly available, represents a broad market average, specific to the fishery industry, and was collected from an official Bangladeshi government source in the surrogate country that the Department has selected. Moreover, we note this source has been used in other cases where Bangladesh has been selected as the surrogate country.
C. Financial Ratios
The Department's criteria for choosing surrogate companies are the availability of contemporaneous financial statements, comparability to the respondent's experience, and publicly available information.
Moreover, for valuing factory overhead (“OH”), selling, general & administrative expenses (“SG&A”) and profit, the Secretary normally will use non-proprietary information gathered from producers of identical or comparable merchandise in the surrogate country.
In addition, the CIT has held that in the selection of surrogate producers, the Department may consider how closely the surrogate producers approximate the non-market producer's experience.
As a result, to value the surrogate financial ratios for OH, SG&A and profit, for integrated respondents, the Department averaged the 2010-2011 financial statements of Apex Foods Limited (“Apex”) and Fine Foods Co., Ltd. (“Fine Foods”). Apex and Fine Foods are integrated producers of comparable merchandise, frozen seafood, in Bangladesh. To value the surrogate financial ratios for OH, SG&A and profit, for non-integrated respondents, the Department used the 2010-2011 financial statement of Gemini Seafood Limited (“Gemini”). Gemini is a non-integrated producer of comparable merchandise, frozen seafood, in Bangladesh.
Although the Petitioners have argued that the Department should not calculate financial ratios using the Gemini financial statement because the record contains evidence that Gemini received export subsidies, we note that in past cases the Department, consistent with long-standing practice, has stated that we will not reject the use of a factor value that is allegedly subsidized unless the Department has previously found the program to be a countervailable subsidy in a countervailing duty proceeding.
A determination of whether a subsidy is countervailable requires the Department to make several complicated legal and factual determinations. Specifically, under U.S. law, the Department must determine that there is a financial contribution from the government that provides a benefit to the recipient which is specific.
Without these findings, the alleged program is not countervailable. Absent such a finding, the Department does not believe that the language of the Act or the legislative history requires that the Department exclude the value at issue from its consideration.
D. Currency Conversion
Where necessary, the Department made currency conversions into U.S. dollars, in accordance with section 773A(a) of the Act, based on the exchange rates in effect on the dates of the U.S. sales, as certified by the Federal Reserve Bank.
Notice of Intent To Revoke the Order, in Part
On August 24, 2011, and August 26, 2011, Vinh Hoan and QVD, respectively, requested revocation of the antidumping duty order with respect to their sales of subject merchandise, pursuant to section 351.222(e) of the Department's regulations. These requests were accompanied by certifications, pursuant to section 351.222(e)(1) of the Department's regulations that (a) Vinh Hoan and QVD have sold the subject merchandise at not less than NV for at least three consecutive years and that they will not sell the merchandise at less than NV in the future, and (b) Vinh Hoan and QVD sold subject merchandise to the United States in commercial quantities for a period of at least three consecutive years. Vinh Hoan and QVD also agreed to immediate reinstatement of the Order, as long as any exporter or producer is subject to the Order, if the Department concludes that, subsequent to its revocation, they sold the subject merchandise at less than NV.
Pursuant to section 751(d) of the Act, the Department “may revoke, in whole or in part” an antidumping duty order upon completion of a review under section 751(a) of the Act. In determining whether to revoke an antidumping duty order in part, the Department considers (a) whether the company in question has sold subject merchandise at not less than NV for a period of at least three consecutive years, (b) whether during each of the three consecutive years for which the company sold the merchandise at not less than NV, it sold the merchandise to the United States in commercial quantities, and (c) the company has agreed in writing to its immediate reinstatement in the order, as long as any exporter or producer is subject to the order, if the Department concludes that the company, subsequent to revocation, sold the subject merchandise at less than NV.
A. Vinh Hoan
We have preliminarily determined that the request from Vinh Hoan meets all of the criteria under section 351.222(e)(1) of the Department's regulations. As noted in the “Preliminary Results of the Review” section below, our preliminary margin calculation confirms that Vinh Hoan sold subject merchandise at not less than NV during the current review period. In addition, we have confirmed that Vinh Hoan sold subject merchandise at not less than NV in the two previous administrative reviews in which they were individually examined (i.e., their dumping margins were zero or de minimis).
Based on our examination of the sales data submitted by Vinh Hoan, we preliminarily determine that it sold the subject merchandise in the United States in commercial quantities in during each of the consecutive years cited by Vinh Hoan to support its request for revocation.
Thus, we preliminarily find that Vinh Hoan had zero or de minimis dumping margins for the last three years and sold subject merchandise in commercial quantities during each of these years.
Furthermore, we preliminarily determine, pursuant to section 751(d) of the Act and section 351.222(b)(2) of the Department's regulations, that the application of the antidumping duty order with respect to Vinh Hoan is no longer warranted because (a) Vinh Hoan had a zero or de minimis margin for a period of at least three consecutive years, (b) Vinh Hoan has agreed to immediate reinstatement of the order if the Department finds that it has resumed making sales at less than NV, and (c) the continued application of the order is not otherwise necessary to offset dumping. Therefore, we preliminarily determine that subject merchandise produced and exported by Vinh Hoan qualifies for revocation from the Order, and that the Order, with respect to such merchandise, should be revoked. If these preliminary findings are affirmed in our final results, we will revoke this order, in part, with respect to fish fillets produced and exported by Vinh Hoan and, in accordance with section 351.222(f)(3) of the Department's regulations, terminate the suspension of liquidation for any of the merchandise in question that is entered, or withdrawn from warehouse, for consumption on or after August 1, 2011, and instruct CBP to release any cash deposits for such entries.
We have preliminarily determined that the request from QVD does not meet all of the criteria under section 351.222(e)(1) of the Department's regulations. As noted in the “Preliminary Results of the Review” section below, our preliminary margin calculation confirms that QVD sold subject merchandise at less than NV during the current review period. In addition, we note that QVD sold subject merchandise at less than NV in the prior administrative review.
Therefore, we preliminarily determine that subject merchandise produced and exported by QVD does not qualify for revocation from the Order.
Preliminary Results of the Review
As a result of our review, we preliminarily find that the following margins exist for the period August 1, 2010, through July 31, 2011.
|Manufacturer/exporter||Weighted- average margin
|Vinh Hoan Corporation 67||0.00|
|Anvifish Joint Stock Company 68||0.00|
|An Phu Seafood Corporation (“An Phu”)||0.00|
|Docifish Corporation (“Docifish”)||0.00|
|Godaco Seafood Joint Stock Company (“Godaco”)||0.00|
|An Giang Agriculture and Food Import-Export Joint Stock Company (“AFIEX”)||0.00|
|An Giang Fisheries Import & Export Joint Stock Company (“Agifish”)||0.00|
|Asia Commerce Fisheries Joint Stock Company (“Acomfish”)||0.00|
|Binh An Seafood Joint Stock Company (“Binh An”)||0.00|
|Cadovimex II Seafood Import-Export and Processing Joint Stock Company (“Cadovimex II”)||0.00|
|Hiep Thanh Seafood Joint Stock Company (“Hiep Thanh”)||0.00|
|Hung Vuong Corporation (“Hung Vuong”)||0.00|
|Nam Viet Corporation (“NAVICO”)||0.00|
|NTSF Seafoods Joint Stock Company (“NTSF”)||0.00|
|QVD Food Company Ltd. (“QVD”) 69||0.00|
|Saigon Mekong Fishery Co., Ltd. (“SAMEFICO”)||0.00|
|Southern Fisheries Industries Company Ltd. (“South Vina”)||0.00|
|Vinh Quang Fisheries Corporation (“Vinh Quang”)||0.00|
|Vietnam-Wide Rate 70||2.11|
Disclosure and Public Comment
In accordance with section 351.224(b) of the Department's regulations, we will disclose to parties of this proceeding the calculations performed in reaching the preliminary results within five days of the date of announcement of the preliminary results.
In accordance with section 351.301(c)(3)(ii) of the Department's regulations, for the final results of these reviews interested parties may submit publicly available information to value FOPs within 20 days after the date of publication of these preliminary results. Interested parties must provide the Department with supporting documentation for the publicly available information to value each FOP. Additionally, in accordance with section 351.301(c)(1) of the Department's regulations, for the final results of these reviews, interested parties may submit factual information to rebut, clarify, or correct factual information submitted by an interested party less than ten days before, on, or after, the applicable deadline for submission of such factual information. However, the Department notes that section 351.301(c)(1) of the Department's regulations permits new information only insofar as it rebuts, clarifies, or corrects information recently placed on the record. The Department generally cannot accept “the submission of additional, previously absent-from-the-record alternative surrogate value or financial ratio information” pursuant to section 351.301(c)(1) of the Department's regulations.
Additionally, for each piece of factual information submitted with surrogate value rebuttal comments, the interested party must provide a written explanation of what information that is already on the record of the ongoing proceeding that the factual information is rebutting, clarifying, or correcting.
Interested parties may submit case briefs within 30 days of publication of the preliminary results and rebuttal briefs, which must be limited to issues raised in the case briefs, within five days after the time limit for filing case briefs.
Parties who submit arguments are requested to submit with the argument (a) a statement of the issue, (b) a brief summary of the argument, and (c) a table of authorities. Parties submitting briefs should do so pursuant to the Department's electronic filing system, IA ACCESS.
Unless the deadline is extended, pursuant to section 751(a)(3)(A) of the Act, the Department will issue the final results of these reviews, 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 these reviews.
In accordance with section 351.212(b) of the Department's regulations, upon issuance of the final results, the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries covered by these reviews. The Department intends to issue assessment instructions to CBP 15 days after the publication date of the final result. For any individually examined respondent whose weighted-average dumping margin is above de minimis (i.e., 0.50 percent) in the final results of these reviews, the Department will calculate importer-specific assessment rates on the basis of the ratio of the total amount of dumping calculated for the importer's examined sales and the total entered value of sales, in accordance with section 351.212(b)(1) of the Department's regulations. As noted above, in this and future reviews, 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. In these preliminary results, the Department applied the assessment rate calculation method adopted in Final Modifications for Reviews, i.e., on the basis of monthly average-to-average comparisons using only the transactions associated with that importer with offsets being provided for non-dumped comparisons.
Where an importer/customer-specific per-unit rate is greater than de minimis, we will apply the assessment rate to the entered value of the importer's/customer's entries during the POR, in accordance with section 351.212(b)(1) of the Department's regulations. Where an importer/customer-specific per-unit rate is zero or de minimis, we will instruct CBP to liquidate appropriate entries without regard to antidumping duties.
For the companies receiving a separate rate that were not selected for individual review, we will assign an assessment rate based on the average of the mandatory respondents, as discussed above. We intend to instruct CBP to liquidate entries containing subject merchandise exported by the Vietnam-wide entity at the Vietnam-wide rate. Finally, for those companies for which this review has been preliminarily rescinded, the Department intends to assess antidumping duties at rates equal to the cash deposit of estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with section 351.212(c)(2) of the Department's regulations, if the review is rescinded for these companies.
Cash Deposit Requirements
The following cash deposit requirements will be effective upon publication of the final results of these reviews for all shipments of the subject merchandise from Vietnam 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: (a) For the exporters listed above, the cash deposit rate will be established in the final results of these reviews (except, if the rate is zero or de minimis, no cash deposit will be required for that company); (b) for previously investigated or reviewed Vietnamese and non-Vietnamese exporters not listed above that have a separate rate, the cash deposit rate will continue to be the exporter-specific rate published for the most recent period; (c) 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 Vietnam-wide rate of $2.11 per kilogram; and (d) 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 cash deposit requirements, when imposed, shall remain in effect until further notice.
Notification to Interested Parties
This notice serves as a preliminary reminder to importers of their responsibility under section 351.402(f)(2) of the Department's regulations 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 30, 2012.
Assistant Secretary for Import Administration.
[FR Doc. 2012-22484 Filed 9-11-12; 8:45 am]
BILLING CODE 3510-DS-P