[Federal Register Volume 70, Number 176 (Tuesday, September 13, 2005)]
[Notices]
[Pages 54007-54012]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E5-4973]



[[Page 54007]]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

International Trade Administration

A-552-801


Certain Frozen Fish Fillets from the Socialist Republic of 
Vietnam: Preliminary Results and Preliminary Partial Rescission of 
Antidumping Duty Administrative Review

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce
SUMMARY: The Department of Commerce (the ``Department'') is conducting 
an administrative review of the antidumping duty order on certain 
frozen fish fillets from the Socialist Republic of Vietnam 
(``Vietnam''). This review covers imports of subject merchandise from 
three manufacturers/exporters, Vinh Hoan Company, Ltd. (Vinh Hoan), Can 
Tho Agricultural and Animal Products Import Export Company 
(``CATACO''), and Phan Quan Company, Ltd. (``Phan Quan''). We are 
preliminarily rescinding the review with respect to Phu Thanh Company 
(``Phu Thanh''). For the three remaining companies, we preliminarily 
find that certain manufacturers/exporters sold subject merchandise at 
less than normal value (``NV'') during the period of review (``POR''). 
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 all appropriate entries. We invite 
interested parties to comment on these preliminary review results. We 
will issue the final review results no later than 120 days from the 
date of publication of this notice.

EFFECTIVE DATE: September 13, 2005.

FOR FURTHER INFORMATION CONTACT: Irene Gorelik (Vinh Hoan), Javier 
Barrientos (CATACO), and Matthew Renkey (Phan Quan), 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) 482-6905, (202) 482-2243 and 
(202) 482-2312, respectively.

SUPPLEMENTARY INFORMATION:

Case History

General

    On August 12, 2003, the Department published in the Federal 
Register the antidumping duty order on certain frozen fish fillets from 
Vietnam. See Notice of Antidumping Duty Order: Certain Frozen Fish 
Fillets from the Socialist Republic of Vietnam, 68 FR 47909 (August 12, 
2003). See the ``Scope of the Order'' section below for a complete 
description of the subject merchandise.
    On August 3, 2004, the Department published a notice of an 
opportunity to request an administrative review on the antidumping duty 
order on certain frozen fish fillets from Vietnam. See Antidumping or 
Countervailing Duty Order, Finding, or Suspended Investigation; 
Opportunity To Request Administrative Review, 69 FR 46496 (August 3, 
2004). On August 27, 2004, we received requests for review from An 
Giang Fisheries Import and Export Joint Stock Company (``Agifish'') and 
CATACO. On August 31, 2004, we received requests for review from An 
Giang Agriculture and Foods Import-Export Company (``AFIEX''), QVD Food 
Co., Ltd. (``QVD''), and Vinh Hoan. Also on August 31, 2004, we 
received requests from Amland Corporation and Amland Foods Corporation, 
U.S. importers of subject merchandise, to conduct an administrative 
review of the following Vietnamese exporters and/or producers: (1) Phan 
Quan, an exporter; (2) Phu Thanh, a producer; and (3) Mekong Fisheries 
Joint Stock Company (``Mekonimex''), a producer and exporter. On 
September 22, 2004, the Department initiated this administrative 
review, covering the aforementioned eight companies. See Initiation of 
Antidumping and Countervailing Duty Administrative Reviews and Requests 
for Revocation in Part (``Initiation Notice''), 69 FR 56745 (September 
22, 2004). Subsequently, on January 28, 2005, due to the withdrawal of 
their review requests, the Department rescinded the review with respect 
to Agifish, AFIEX, QVD, and Mekonimex. See Certain Frozen Fish Fillets 
from the Socialist Republic of Vietnam: Rescission, in Part, of 
Antidumping Duty Administrative Review, 70 FR 4092 (January 28, 2005). 
On April 5, 2005, the Department extended the deadline for the 
preliminary results of this review by 120 days, to August 31, 2005. See 
Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: 
Extension of Time Limit for Preliminary Results of the First 
Antidumping Duty Administrative Review, 70 FR 17231 (April 5, 2005).

Questionnaires and Responses

    On October 6, 2004, the Department issued its Section A, C and D 
antidumping duty questionnaires to the companies listed in the 
Initiation Notice.\1\ The four companies for which the Department 
rescinded the review withdrew their requests for review before 
responding to the Department's questionnaires. Phu Thanh reported that 
it was the producer for Phan Quan, and submitted Section D data as part 
of Phan Quan's response. A list of the responses submitted by each 
company, as well as a list of Petitioners' comments on those responses, 
follows.
---------------------------------------------------------------------------

    \1\ Section A of the antidumping duty questionnaire requests 
general information concerning a company's corporate structure and 
business practices, the merchandise under investigation, and the 
manner in which it sells that merchandise in all of its markets. 
Section C requests a complete listing of the company's U.S. sales of 
subject merchandise. Section D requests information on the factors 
of production of the merchandise under review.
---------------------------------------------------------------------------

    On November 4, 2004, we received Vinh Hoan's Section A 
questionnaire response. On November 29, 2004, we received Vinh Hoan's 
Sections C and D questionnaire responses. We issued supplemental 
questionnaires on: (1) January 11, 2005 (response received on January 
25, 2005); (2) March 7, 2005, and March 15, 2005 (aligned responses 
received on April 5, 2005); (3) April 15, 2005 and May 11, 2005 
(responses received on May 25, 2005, and June 3, 2005); and (4) August 
8, 2005 (response received on August 12, 2005). Also on June 3, 2005, 
Vinh Hoan submitted its sales and cost reconciliations.
    On October 27, 2004, we received CATACO's Section A questionnaire 
response. On November 29, 2004, we received CATACO's Sections C and D 
questionnaire responses. We issued supplemental questionnaires on: (1) 
December 13, 2004 (response received on January 10, 2005); (2) March 7, 
2005, and March 15, 2005 (aligned responses received on April 6, 2005); 
April 15, 2005 (response received April 22, 2005); (3) May 11, 2005 
(responses received on June 8, 2005, and June 17, 2005); (4) June 22, 
2005 (response received July 1, 2005); and (5) July 22, 2005 and July 
26, 2005 (aligned responses received on August 9, 2005). On June 8, 
2005, CATACO submitted its sales and cost reconciliations.
    On November 3, 2004, we received Phan Quan's Section A 
questionnaire response. On November 29, 2004, we received Phan Quan's 
Sections C and D questionnaire responses. On January 3, 2005, Phan Quan 
submitted a letter stating that it should have reported a constructed 
export price (``CEP'') rather than an export price (``EP'') sales 
database, and that it would do so in its next supplemental response. On 
January 24, 2005, the Department issued a Section A supplemental 
questionnaire to Phan Quan, and received Phan Quan's response on 
February 15, 2005. On February 23 and 25, 2004, the Department sent 
letters to Phan Quan

[[Page 54008]]

explaining that its Section A supplemental response was deficient, 
including the fact that it had not submitted a revised Section C 
response, as it had indicated it would do on January 3, 2005. Phan Quan 
submitted responses to the Department's deficiency letters on February 
23, 2005, March 4, 2005, and March 7, 2005. On April 4, 2005, the 
Department issued Phan Quan a Section A, C and D supplemental 
questionnaire, and Phan Quan submitted its responses on May 2 and 18, 
2005. On June 2, 2005, Phan Quan submitted a letter stating that it 
would no longer participate in this review.
    Petitioner submitted comments on respondents' questionnaire 
responses on December 1, 23 and 27, 2004, April 27, 2005 and May 16, 
2005. On December 30, 2004, Petitioners requested that the Department 
conduct verification of the responses submitted during the course of 
this review.

Surrogate Country and Surrogate Values

    On November 9, 2004, we issued a letter to the interested parties 
requesting comments on surrogate country selection. Petitioners 
submitted comments on surrogate country selection on December 15, 2004; 
no other party submitted comments on this issue.
    On July 13, 2005, in response to the Department's request, the 
parties submitted surrogate value information for the Department to 
consider for these preliminary results. On July 27, 2005, Petitioners 
submitted rebuttal comments on the surrogate value information 
submitted by respondents, and CATACO submitted rebuttal comments on 
Petitioners' surrogate value filing.

Period of Review

    The POR is January 1, 2003, through July 31, 2004.

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 code 0304.20.60.33 (Frozen Fish Fillets of the species 
Pangasius including basa and tra) of the Harmonized Tariff Schedule of 
the United States (``HTSUS'').\2\ 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.
---------------------------------------------------------------------------

    \2\ 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.
---------------------------------------------------------------------------

Verification

    Following the publication of these preliminary results, we intend 
to verify, as provided in section 782(i)(3) of the Act, sales and cost 
information submitted by respondents, as appropriate. At that 
verification, we will use standard verification procedures, including 
on-site inspection of the manufacturers' facilities, the examination of 
relevant sales and financial records, and the selection of original 
source documentation containing relevant information. We will prepare 
verification reports outlining our verification results and place these 
reports on file in the Central Records Unit, room B099 of the main 
Commerce building.

Partial Rescission of Review

    As noted in the Initiation Notice, Phu Thanh was among the 
companies for which we initiated this administrative review. However, 
based upon the information described below, we are now rescinding this 
review with respect to Phu Thanh. Although Amland Corporation and 
Amland Foods Corporation requested a review of Phu Thanh, their request 
identified Phu Thanh only as a producer, while noting that the other 
companies in their request were exporters or producers/exporters. Phan 
Quan identified Phu Thanh only as its contract processor for the 
subject merchandise. At no point during the course of this review did 
Phu Thanh report that it exported subject merchandise during the POR. 
To confirm that Phu Thanh did not export subject merchandise during the 
POR, we examined shipment data furnished by CBP and found no entries 
from Phu Thanh. Accordingly, in accordance with 19 CFR 351.213(d)(3), 
we are preliminarily rescinding the review of Phu Thanh.

Separate Rates Determination

    The Department has treated Vietnam as a non-market economy 
(``NME'') country in all previous antidumping cases. See, e.g., Notice 
of Final Determination of Sales at Less Than Fair Value: Certain Frozen 
and Canned Warmwater Shrimp from the People's Republic of China, 69 FR 
70997 (December 8, 2004). It is the Department's policy to assign all 
exporters of the merchandise subject to review that are located in NME 
countries a single antidumping duty rate unless an exporter can 
demonstrate an absence of governmental control, both in law (de jure) 
and in fact (de facto), with respect to its export activities. To 
establish whether an exporter is sufficiently independent of 
governmental control to be entitled to a separate rate, the Department 
analyzes the exporter using the criteria established in the Final 
Determination of Sales at Less Than Fair Value: Sparklers from the 
People's Republic of China, 56 FR 20588 (May 6, 1991) (``Sparklers''), 
as amplified in the 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''). Under the separate rates criteria 
established in these cases, the Department assigns separate rates to 
NME exporters only if they can demonstrate the absence of both de jure 
and de facto governmental control over their export activities.

Absence of De Jure Control

    Evidence supporting, though not requiring, a finding of the absence 
of de jure governmental control over export activities includes: (1) an 
absence of restrictive stipulations associated with an individual 
exporter's business and export licenses; (2) any legislative enactments 
decentralizing control of companies; and (3) any other formal measures 
by the government decentralizing control of companies. See Sparklers, 
56 FR at 20589.
    In the less-than-fair-value (``LTFV'') investigation for this case, 
the Department granted separate rates to Vinh Hoan and CATACO. See 
Notice of

[[Page 54009]]

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) and 
accompanying Issues and Decision Memorandum at Comments 5 and 6. 
However, it is the Department's policy to evaluate separate rates 
questionnaire responses each time a respondent makes a separate rates 
claim, regardless of whether the respondent received a separate rate in 
the past. See Manganese Metal From the People's Republic of China, 
Final Results and Partial Rescission of Antidumping Duty Administrative 
Review, 63 FR 12441 (March 13, 1998). In the instant review Vinh Hoan 
and CATACO submitted complete responses to the separate rates section 
of the Department's questionnaire. The evidence submitted in the 
instant review by these respondents includes government laws and 
regulations on corporate ownership, business licences, and narrative 
information regarding the companies' operations and selection of 
management. The evidence provided by Vinh Hoan and CATACO supports a 
finding of a de jure absence of governmental control over their export 
activities because: (1) there are no controls on exports of subject 
merchandise, such as quotas applied to, or licenses required for, 
exports of the subject merchandise to the United States; and (2) the 
subject merchandise does not appear on any government list regarding 
export provisions or export licensing.

Absence of De Facto Control

    The absence of de facto governmental control over exports is based 
on whether the Respondent: (1) Sets its own export prices independent 
of the government and other exporters; (2) retains the proceeds from 
its export sales and makes independent decisions regarding the 
disposition of profits or financing of losses; (3) has the authority to 
negotiate and sign contracts and other agreements; and (4) has autonomy 
from the government regarding the selection of management. See Silicon 
Carbide, 59 FR at 22587; Sparklers, 56 FR at 20589; see also Notice of 
Final Determination of Sales at Less Than Fair Value: Furfuryl Alcohol 
from the People's Republic of China, 60 FR 22544, 22545 (May 8, 1995).
    In their questionnaire responses, Vinh Hoan and CATACO 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) foreign 
currency does not need to be sold to the government. Therefore, the 
Department has preliminarily found that Vinh Hoan and CATACO have 
established primae facie that they qualify for separate rates under the 
criteria established by Silicon Carbide and Sparklers. As discussed 
below, the Department is not granting Phan Quan a separate rate because 
we are unable to verify the separate rate information it submitted in 
its questionnaire responses.

Use of Facts Available

    Section 776(a)(2) of the Act, provides that, if an interested 
party: (A) Withholds information that has been requested by the 
Department; (B) fails to provide such information in a timely manner or 
in the form or manner requested, subject to sections 782(c)(1) and (e) 
of the Act; (C) significantly impedes a proceeding under the 
antidumping statute; or (D) provides such information but the 
information cannot be verified, the Department shall, subject to 
subsection 782(d) of the Act, use facts otherwise available in reaching 
the applicable determination.
    Furthermore, section 776(b) of the Act states that ``if the 
administrating authority 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 at 870 (1994).

Phan Quan/Vietnam-Wide Entity

    Phan Quan submitted a letter on June 2, 2005 stating that it would 
no longer participate in this review. By stating it would no longer 
participate, Phan Quan is explicitly impeding this proceeding. As 
evidenced by Petitioners' May 16, 2005, comments and by the CBP entry 
packages placed on the record by the Department also on May 16, 2005, 
there were a number of outstanding issues that Phan Quan needed to 
address before the Department could fulfill its statutory duty to 
calculate a dumping margin as accurately as possible. Because Phan Quan 
stated that it would no longer participate in this review, the 
Department is precluded from asking additional questions to clarify 
certain information it had placed on the record and from obtaining new 
information from Phan Quan. In addition, the Department intended on 
verifying Phan Quan's information because Phan Quan did not participate 
in the original LTFV investigation. Therefore, the Department had good 
cause to verify Phan Quan's information in this proceeding. See 19 CFR 
351.307(b)(v)(B). Given Phan Quan's withdrawal from the proceedings, 
the Department will not be able to verify any of the information Phan 
Quan has submitted throughout the review, including its eligibility for 
a separate rate.
    Because we were unable to ask Phan Quan any follow-up questions 
regarding its claim for a separate rate, we find that it is 
appropriately considered to be part of the Vietnam-wide entity. 
Furthermore, we note that the Vietnam-wide entity did not provide 
information necessary to the instant proceeding. Section 776(a)(1) of 
the Act mandates that the Department use the facts available if 
necessary information is not available on the record of an antidumping 
proceeding. In selecting from among the facts available, pursuant to 
section 776(b) of the Act, an adverse inference is warranted when the 
Department has determined that a respondent has failed to cooperate by 
not acting to the best of its ability to comply with our request for 
information. Since Phan Quan significantly impeded the proceeding, the 
application of AFA is appropriate. Thus, because the Vietnam-wide 
entity (including Phan Quan) has failed to cooperate to the best of its 
ability in providing the requested information, we find it appropriate 
to use an inference that is adverse to the interests of the Vietnam-
wide entity in selecting from among the facts otherwise available. By 
doing so, we ensure that the companies that are part of the Vietnam-
wide entity will not obtain a more favorable result by failing to 
cooperate than had they cooperated fully in this review.
    Section 776(b) of the Act indicates that an adverse inference may 
include reliance on information derived from

[[Page 54010]]

the petition, the final determination in the less-than-fair-value 
(``LTFV'') investigation, any previous administrative review, or any 
other information placed on the record. As AFA, we are assigning the 
Vietnam-wide entity (which includes Phan Quan) the 63.88 percent 
Vietnam-wide rate from the LTFV investigation.

CATACO

    On November 29, 2004, we received CATACO's Section C questionnaire 
response, including the total quantity and value of U.S. sales. On 
April 6, 2005, in response to a supplemental questionnaire, CATACO 
submitted revised quantity and value data, explaining in part that it 
had inadvertently omitted a large percentage of its U.S. sales in its 
original Section C response. On April 27, 2005, Petitioners submitted 
comments regarding how certain merchandise was sold to the United 
States by CATACO. In subsequent supplemental questionnaires, due in 
part to the comments received from Petitioners, we asked CATACO for 
more information regarding its U.S. sales of certain subject and non-
subject merchandise. In its June 8, 2005 supplemental questionnaire 
response, CATACO stated that the differences in its original and 
revised sales database were due to the way in which certain sales to 
the United States were described in its records. On July 1, 2005, in 
response to another supplemental questionnaire, CATACO submitted 
additional information about product descriptions for these sales. We 
also requested entry data from CBP, which included entries of 
merchandise exported by CATACO during the POR.
    Based on the information pertaining to certain sales submitted by 
CATACO, as well as the analysis of the CBP entry data, we have 
determined that CATACO undermined the Department's statutory obligation 
under Section 736 of the Act to ensure assessment of the correct 
antidumping duty amount and has also submitted contradictory 
information on the record of this review with respect to its sales of 
subject merchandise to the United States. In so doing, CATACO has 
significantly impeded this review under Section 776(a)(2)(C) of the 
Act. We further find that, pursuant to Section 776(b) of the Act, an 
adverse inference is warranted because CATACO failed to cooperate to 
the best of its ability. The Department is unable to calculate an 
accurate assessment rate for entries of subject merchandise from CATACO 
based upon the information CATACO submitted. Therefore, as partial AFA, 
we are assigning the Vietnam-wide rate of 63.88 percent for certain 
sales by CATACO. Because of the proprietary nature of the information 
relevant to this issue, the Department's detailed analysis of the basis 
for application of AFA is set forth in the Certain Frozen Fish Fillets 
from the Socialist Republic of Vietnam (``Vietnam''): Can Tho 
Agricultural and Animal Products Import Export Company (``CATACO'') 
Analysis for the Preliminary Results of the Administrative Review, 
dated August 31, 2005 (``CATACO Analysis Memo'').

Corroboration

    Section 776(c) of the Act requires the Department to 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 
accompanying the URAA, H.R. Doc. No. 103-316 at 870 (1994); see also 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. However, 
unlike other types of information, such as input costs or selling 
expenses, there are no independent sources for calculated dumping 
margins. Thus, in an administrative review, if the Department chooses 
as total AFA a calculated dumping margin from a prior segment of the 
proceeding, it is not necessary to question the reliability of the 
margin. See e.g., Heavy Forged Hand Tools From the People's Republic of 
China: Final Results and Partial Rescission of Antidumping Duty 
Administrative Review and Determination Not to Revoke in Part, 67 FR 
57789, 57791 (September 12, 2002).
    The AFA rate selected above was calculated using information 
provided during the LTFV investigation. As this rate has not been 
judicially invalidated, we consider it to be reliable. When 
circumstances warrant, the Department may diverge from its standard 
practice of selecting as the AFA rate the highest rate in any segment 
of the proceeding. For example, in Fresh Cut Flowers From Mexico; Final 
Results of Antidumping Duty Administrative Review, 61 FR 6812 (February 
22, 1996) (``Flowers from Mexico''), the Department did not use the 
highest margin in the proceeding as best information available (the 
predecessor to facts available) because that margin was based on 
another company's aberrational business expenses and was unusually 
high. See Flowers from Mexico, 61 FR at 6814. In other cases, the 
Department has not used the highest rate in any segment of the 
proceeding as the AFA rate because the highest rate was subsequently 
discredited, or the facts did not support its use. See D&L Supply Co. 
v. United States, 113 F.3d 1220, 1221 (Fed. Cir. 1997) (the Department 
will not use a margin that has been judicially invalidated). None of 
these unusual circumstances are present with respect to the rate being 
used here. Accordingly, we have corroborated the AFA rate identified 
above, as required
    in accordance with the requirement of section 776(c) of the Act 
that secondary information be corroborated (i.e., that it have 
probative value).

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 factors of production, 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 factors of production, the Department shall 
utilize, to the extent possible, the prices or costs of factors of 
production in one or more market-economy countries that are at a level 
of economic development comparable to that of the NME country and are 
significant producers of comparable merchandise. The sources of the 
surrogate values we have used in this investigation are discussed under 
the ``Normal Value'' Section below.
    As discussed in the ``Separate Rates'' section, 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. We have no evidence suggesting 
that this determination should be changed. Therefore, we treated 
Vietnam as an NME country for purposes of this review and calculated NV 
by valuing the FOP in a surrogate country.
    The Department determined that Bangladesh, Pakistan, India, 
Indonesia, and Sri Lanka are countries comparable to the Vietnam in 
terms of economic

[[Page 54011]]

development. See Memorandum from Ron Lorentzen, Office of Policy, 
Acting Director, to James C. Doyle, Program Manager: Antidumping Duty 
Administrative Review of Certain Frozen Fish Fillets (``Frozen Fish'') 
from the Socialist Republic of Vietnam: Request for a List of Surrogate 
Countries, dated November 9, 2004. We select an appropriate surrogate 
country 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 (``Policy Bulletin''), dated March 
1, 2004. In this case, we have found that Bangladesh is a significant 
producer of comparable merchandise, is at a similar level of economic 
development pursuant to 773(c)(4) of the Act, and has publically 
available and reliable data. See the memorandum entitled ``Antidumping 
Duty Administrative Review of Certain Frozen Fish Fillets from the 
Socialist Republic of Vietnam: Selection of a Surrogate Country,'' 
dated August 31, 2005 (``Surrogate Country Memo''). 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 or Indonesian sources.

U.S. Price

    In accordance with section 772(a) of the Act, the Department 
calculated EP for sales to the United States for the participating 
respondents receiving calculated rates because the first sale to an 
unaffiliated party was made before the date of importation and the use 
of CEP was not otherwise warranted. We calculated EP based on the price 
to unaffiliated purchasers in the United States. In accordance with 
section 772(c) of the Act, as appropriate, we deducted from the 
starting price to unaffiliated purchasers foreign inland freight, 
brokerage and handling, warehousing, containerization, and 
international freight. For the respondents receiving calculated rates, 
each of these services was either provided by an NME vendor or paid for 
using an NME currency, with one exception. For international freight 
provided by a market economy provider and paid in U.S. dollars, we used 
the actual cost per kilogram of the freight. See Antidumping Duty 
Administrative Review of Certain Frozen Fish Fillets from the Socialist 
Republic of Vietnam (``Vietnam''): Surrogate Values for the Preliminary 
Results, dated August 31, 2005 (``Surrogate Values Memo'') for details 
regarding the surrogate values for other movement expenses.

Normal Value

    In accordance with section 773(c) of the Act, we calculated NV 
based on FOPs reported by the Respondents for the POR. We have decided 
to calculate NV based upon the whole fish input. Respondents initially 
reported their FOPs on a whole fish basis. In subsequent 
questionnaires, based on comments from Petitioners, the Department also 
requested that Respondents provide FOPs for their integrated stages of 
production. However, in reporting the FOPs from their integrated 
stages, Respondents Vinh Hoan and CATACO stated that they encountered 
significant difficulties providing the Department with comprehensive 
data since they were integrated producers for only a small portion of 
the POR. Therefore, for these preliminary results and consistent with 
the LTFV investigation, we are calculating NV beginning with the whole 
fish input at the processing stage. See Surrogate Values Memo. 
Additionally, for these preliminary results, because Vinh Hoan's 
reported by-products offsets and fish fillet production exceeded the 
direct materials input amounts, we capped Vinh Hoan's reported by-
products to a level that would reconcile to the total amount of the 
direct raw material inputs (whole fish and MTR-79). See Certain Frozen 
Fish Fillets from the Socialist Republic of Vietnam (``Vietnam''): Vinh 
Hoan Company Ltd. (``Vinh Hoan'') Analysis for the Preliminary Results 
of the Administrative Review, dated August 31, 2005.
    To calculate NV, we multiplied the reported FOP usage ratios by 
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. We calculated these inland freight costs using the 
reported distances from the Vietnam port to the Vietnam factory, or 
from the domestic supplier to the factory. This adjustment is in 
accordance with the decision of the United States Court of Appeals for 
the Federal Circuit (``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 or deflation 
using data published in the IMF's International Financial Statistics. 
We excluded from the surrogate country import data used in our 
calculations imports from Korea, Thailand, Indonesia and India 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 (March 15, 2005) and accompanying Issues and Decision 
Memorandum at Comment 4. 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 the 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 January 31, 2003, through July 31, 2004:

                Certain Frozen Fish Fillets from Vietnam
------------------------------------------------------------------------
                                                       Weighted-Average
                Manufacturer/Exporter                  Margin (Percent)
------------------------------------------------------------------------
Vinh Hoan...........................................                7.23
CATACO..............................................               38.08
Vietnam-wide Rate\1\................................               63.88
------------------------------------------------------------------------
\3\ The Vietnam-wide rate includes Phan Quan.

Public Comment

    The Department will disclose to parties to 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). Since the verifications 
for Respondents are being conducted subsequent to these preliminary 
results, interested parties may submit written comments (case briefs) 
within seven days of release of the verification reports and rebuttal 
comments (rebuttal briefs), which must be limited to issues raised in 
the case briefs, within five days after the time limit for filing case 
briefs. See 19 CFR 351.309(c)(1)(ii) and 19 CFR 351.309(d). Parties who 
submit arguments are requested to submit with the argument: (1) a 
statement of the issue; (2) a brief summary of the argument; and (3) a 
table of authorities. Further, the Department requests that parties 
submitting written comments provide the Department with a diskette 
containing the public version of those

[[Page 54012]]

comments. Unless the deadline is extended pursuant to section 
751(a)(3)(A) of the Act, the Department will issue the final results of 
this administrative review, including the results of our analysis of 
the issues raised by the parties in their comments, within 120 days of 
publication of the preliminary results. The assessment of antidumping 
duties on entries of merchandise covered by this review and future 
deposits of estimated duties shall be based on the final results of 
this review.

Assessment Rates

    Upon completion of this administrative review, pursuant to 19 CFR 
351.212(b), the Department will calculate an assessment rate on all 
appropriate entries. We will calculate importer-specific duty 
assessment rates on the basis of the ratio of the total amount of 
antidumping duties calculated for the examined sales to the total 
volume of the examined sales for that importer. However, to ensure 
proper assessment, the Department has adjusted the total volume of the 
examined sales for CATACO as outlined in the CATACO Analysis Memo. 
Where the assessment rate is above de minimis, we will instruct CBP to 
assess duties on all entries of subject merchandise by that importer. 
We will instruct CBP to take into account the ``provisional measures 
cap'' in accordance with 19 CFR 351.212(d).

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) The cash deposit 
rate for each of the reviewed companies that received a separate rate 
in this review will be the rate listed in the final results of review 
(except that if the rate for a particular company is de minimis, i.e., 
less than 0.5 percent, no cash deposit will be required for that 
company); (2) for previously investigated companies not listed above, 
the cash deposit rate will continue to be the company-specific rate 
published for the most recent period; (3) if the exporter is not a firm 
covered in this review, a prior review, or the original LTFV 
investigation, but the manufacturer is, the cash deposit rate will be 
the rate established for the most recent period for the manufacturer of 
the merchandise; and (4) the cash deposit rate for all other 
manufacturers or exporters (including Phan Quan) will continue to be 
the ``Vietnam-wide'' rate of 63.88 percent, which was established in 
the LTFV investigation. These deposit requirements, when imposed, shall 
remain in effect until publication of the final results of the next 
administrative review.

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, 2005.
Barbara E. Tillman,
Acting Assistant Secretary for Import Administration.
[FR Doc. E5-4973 Filed 9-12-05; 8:45 am]
Billing Code: 3510-DS-S