[Federal Register Volume 71, Number 54 (Tuesday, March 21, 2006)]
[Notices]
[Pages 14170-14173]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-4070]


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DEPARTMENT OF COMMERCE

International Trade Administration

A-552-801


Certain Frozen Fish Fillets From the Socialist Republic of 
Vietnam: Final Results of the First Administrative Review

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.
SUMMARY: On September 13, 2005, the Department of Commerce (the 
``Department'') published in the Federal Register the preliminary 
results of the first administrative review of the antidumping duty 
order on certain frozen fish fillets from the Socialist Republic of 
Vietnam (``Vietnam''). See Certain Frozen Fish Fillets From the 
Socialist Republic of Vietnam: Preliminary Results and Preliminary 
Partial Rescission of Antidumping Duty Administrative Review, 70 FR 
54007 (September 13, 2005) (``Preliminary Results''). We gave 
interested parties an opportunity to comment on the Preliminary 
Results. As a result, we made changes to the dumping margin 
calculations for the final results. See Memorandum to the File from 
Irene Gorelik, Analyst, through Alex Villanueva, Program Manager; 
Analysis for the Final Results of Certain Frozen Fish Fillets from the 
Socialist Republic of Vietnam: Vinh Hoan Company Ltd. (``Vinh Hoan''), 
dated March 13, 2006 (``Vinh Hoan Final Analysis Memo''); see also 
Memorandum to the File from Javier Barrientos, Analyst, through Alex 
Villanueva, Program Manager; Analysis for the Final Results of Certain 
Frozen Fish Fillets from the Socialist Republic of Vietnam: Can Tho 
Agricultural and Animal Products Import Export Company (``CATACO''), 
dated March 13, 2006 (``CATACO Final Analysis Memo'').

EFFECTIVE DATE: March 21, 2006.

FOR FURTHER INFORMATION CONTACT: Irene Gorelik (Vinh Hoan) or Javier 
Barrientos (CATACO), 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 or (202) 482-9068, respectively.

SUPPLEMENTARY INFORMATION:

Case History

    The Preliminary Results for this administrative review were 
published on September 13, 2005. Since the Preliminary Results, the 
following events have occurred:
Submission of Final Surrogate Value Information
    On September 30, 2005, Vinh Hoan submitted publicly available 
information to be used in valuing surrogate factors of production for 
the final results. On October 3, 2005, the Department extended the 
deadline for the submission of publicly available information for the 
final results per Petitioners'\1\ extension request dated September 30, 
2005. On October 17, 2005, Petitioners submitted publicly available 
information for the Department's consideration in the final results. On 
October 17, 2005, H&N Foods International (``H&N''), an interested 
party, submitted publicly available information for the final results. 
On October 27, 2005, Petitioners submitted rebuttal comments to H&N's 
October 17, 2005, submission of publicly available information.
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    \1\ The Catfish Farmers of America and individual U.S. catfish 
processors are henceforth collectively referred to as 
``Petitioners.''
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Verification
    On September 30, 2005, the Department issued verification outlines 
to Vinh Hoan and CATACO for the on-site verifications scheduled for 
October 10, 2005, through October 14, 2005. On October 6, 2005, 
Petitioners submitted pre-verification comments for Vinh Hoan and 
CATACO regarding the sales and factors of production verifications 
scheduled for October 10, 2005, through October 14, 2005. The 
Department conducted its verification of Vinh Hoan's questionnaire 
responses from October 10, 2005, through October 14, 2005. The 
Department began its verification of CATACO's questionnaire responses 
on October 10, 2005. On October 12, 2005, CATACO terminated the 
verification and informed the Department that it no longer wished to 
participate in this administrative review. On October 24, 2005, Vinh 
Hoan submitted verification exhibits per its extension request dated 
September 30,

[[Page 14171]]

2005. On November 1, 2005, the Department issued its verification 
report for CATACO. On November 14, 2005, the Department issued its 
verification report for Vinh Hoan. On January 9, 2006, the Department 
issued a memorandum clarifying a statement in its verification report 
for CATACO.
Case Briefs
    On October 6, 2005, and November 10, 2005, the Department extended 
the deadline for the submission of case briefs. On November 15, 2005, 
the Department issued a memorandum inviting comments from interested 
parties regarding the expected nonmarket economy wage rate. On November 
29, 2005, January 6, 2006, and January 11, 2006, the Department further 
extended the deadline for the submission of case briefs due to our 
extension of the final results of this review. On January 20, 2006, 
Petitioners filed an extension request for case brief submissions 
concerning CATACO. On January 20, 2006, the Department granted 
Petitioners' limited extension request. On January 24, 2006, 
Petitioners, Vinh Hoan and H&N submitted case briefs concerning Vinh 
Hoan. On January 27, 2006, Petitioners submitted case briefs concerning 
CATACO. On February 3, 2006, Petitioners, Vinh Hoan, and H&N submitted 
rebuttal briefs concerning both respondents. In its February 3, 2006, 
rebuttal brief, Vinh Hoan stated that Petitioners included new 
information in their January 24, 2005, case brief concerning Vinh Hoan. 
On February 9, 2005, the Department notified Petitioners that they must 
remove the new information from their January 24, 2006, case brief 
concerning Vinh Hoan. On February 10, 2006, Petitioners resubmitted 
their case brief concerning Vinh Hoan absent the unsolicited and 
untimely new information included in their January 24, 2006, case 
brief.
Hearing
    On October 13, 2005, Petitioners submitted a request for a public 
hearing. On January 20, 2005, Petitioners withdrew their October 13, 
2005, request for a public hearing.
Extension of the Final Results
    On December 2, 2005, the Department extended the time limit for 
completion of the final results of the instant administrative review. 
See Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: 
Extension of Time Limit for the Final Results of the First Antidumping 
Duty Administrative Review, 70 FR 72294 (December 2, 2005).
CATACO Business Proprietary Information (``BPI'')
    On October 13, 2005, CATACO formally filed its request for the 
removal and/or destruction of its BPI. On October 21, 2005, Petitioners 
filed a request to deny CATACO's request to either return or destroy 
its BPI. On January 18, 2006, the Department issued a memorandum 
regarding its intention to remove and destroy CATACO's BPI documents 
placed on the record for this administrative review. On January 23, 
2006, the Department sent CATACO a letter stating that we removed its 
BPI submission from the record.
    On January 17, 2006, the Department placed entry summaries received 
from U.S. Customs and Border Protection (``CBP'') on the record. On 
January 18, 2006, the Department placed certain public information from 
the second administrative review of certain frozen fish fillets from 
Vietnam on the record of this proceeding.

Scope of the Order

    The product covered by this order is frozen fish fillets, including 
regular, shank, and strip fillets and portions thereof, whether or not 
breaded or marinated, of the species Pangasius Bocourti, Pangasius 
Hypophthalmus (also known as Pangasius Pangasius), and Pangasius 
Micronemus. Frozen fish fillets are lengthwise cuts of whole fish. 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.
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    \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.
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Analysis of Comments Received

    All issues raised in the case and rebuttal briefs by parties to 
this proceeding and to which we have responded are listed in the 
Appendix to this notice and addressed in the Issues and Decision 
Memorandum (``Final Decision Memo''), which is hereby adopted by this 
notice. Parties can find a complete discussion of the issues raised in 
this administrative review and the corresponding recommendations in 
this public memorandum which is on file in the Central Records Unit 
(``CRU''), room B-099 of the main Department building. In addition, a 
copy of the Final Decision Memo can be accessed directly on our Web 
site at http://ia.ita.doc.gov/. The paper copy and electronic version 
of the Final Decision Memo are identical in content.

Verification

    As provided in section 782(i) of the of the Tariff Act, as Amended 
(``the Act''), we conducted verification of the information submitted 
by Vinh Hoan and CATACO for use in our final results. See Memorandum to 
the File, through, Alex Villanueva, Program Manager, AD/CVD Operations, 
Office 9, from, Irene Gorelik, Case Analyst, AD/CVD Operations, Office 
9, RE: Verification of Sales and Factors of Production for Vinh Hoan 
Company Ltd. (``Vinh Hoan'') (November 14, 2005) (``Vinh Hoan 
Verification Report''); see also Memorandum to the File from Alex 
Villanueva, Program Manager, Verification of Sales and Factors of 
Production for Can Tho Agricultural and Animal Products Import Export 
Company (``CATACO'') in the First Administrative Review of Certain 
Frozen Fish Fillets from the Socialist Republic of Vietnam (November 1, 
2005) (``CATACO Verification Report'') and Memorandum to the File from 
Alex Villanueva, Program Manager, Certain Frozen Fish Fillets from the 
Socialist Republic of Vietnam: Verification Report Correction (January 
9, 2006) (``CATACO Verification Report Correction''). For both 
companies, we used standard verification procedures, including 
examination of relevant accounting and

[[Page 14172]]

production records, as well as original source documents provided by 
the Respondents.
    As stated above, the Department began verification of CATACO's 
sales and factors of production on October 10, 2005. On October 12, 
2005, CATACO terminated the verification prior to its scheduled 
completion. See CATACO Verification Report. See also CATACO 
Verification Report Correction.

Changes Since the Preliminary Results

    Based on a review of the record as well as comments received from 
parties regarding our Preliminary Results, we have made revisions to 
the margin calculations for the final results. Specific changes to Vinh 
Hoan's margin calculation include a revision of the inflator used for 
truck freight, a recalculation of labor and electricity reported for 
byproduct production as a result of verification findings, an update to 
the margin program language merging Vinh Hoan's sales and factors of 
production datasets, and other changes resulting from our decisions in 
Comments 5 and 6 of the Final Decision Memo. See Vinh Hoan Final 
Analysis Memo. See also Memorandum from Irene Gorelik, Case Analyst, 
through Alex Villanueva, Program Manager, Office 9 and James C. Doyle, 
Office Director, Office 9, to The File, Antidumping Duty Administrative 
Review of Certain Frozen Fish Fillets from the Socialist Republic of 
Vietnam (``Vietnam''): Surrogate Values for the Final Results, dated 
March 13, 2006 (``Final Factors Memo''). CATACO's margin calculation 
changes are addressed in Comment 2 of the Final Decision Memo. A full 
discussion of the calculation methodology is described in CATACO's 
analysis memorandum. See CATACO Final Analysis Memo at 1.

Adverse 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 subsections 782(c)(1) and (e) of the 
Act; (C) significantly impedes a determination 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.
    Further, section 776(b) of the Act provides that, if the Department 
finds that an interested party ``has failed to cooperate by not acting 
to the best of its ability to comply with a request for information,'' 
the Department may use information that is adverse to the interests of 
that party as facts otherwise available. Adverse inferences are 
appropriate ``to ensure that the party does not obtain a more favorable 
result by failing to cooperate than if it had cooperated fully.'' See 
Statement of Administrative Action (``SAA'') accompanying the URAA, 
H.R. Doc. No. 316, 103d Cong., 2d Session at 870 (1994). An adverse 
inference may include reliance on information derived from the 
petition, the final determination in the investigation, any previous 
review, or any other information placed on the record. See section 
776(b) of the Act.
    In accordance with sections 776(a)(2)(C) and (D) of the Act, the 
Department finds that applying facts available is warranted for CATACO 
because CATACO terminated verification and withdrew its BPI from the 
record of the instant proceeding, thereby significantly impeding this 
proceeding and rendering the information submitted unverifiable. For 
the final results, pursuant to section 776(a)(1) of the Act, we are 
applying facts otherwise available to CATACO because the necessary 
information is not available on the record. Furthermore, pursuant to 
section 776(b) of the Act, the Department has determined that CATACO 
did not cooperate to the best of its ability to comply with the 
Department's requests for information during the verification. 
Therefore, pursuant to section 776(b) of the Act, for the final 
results, we will apply facts available with an adverse inference, in 
selecting from among the facts otherwise available, to CATACO because 
it failed to cooperate to the best of its ability when it terminated 
verification. We find that for cash deposit purposes the Department 
must take into account the reimbursement findings at verification and 
assign CATACO an individual rate for future entries because it would be 
inappropriate to apply the reimbursement finding to all exporters that 
are part of the Vietnam-Wide Entity. While it would be consistent with 
the Department's normal practice for CATACO to be subject to the same 
rate as all other exporters that are part of the Vietnam-Wide Entity 
because it failed to cooperate to the best of its ability and withdrew 
from the proceeding, the Department's additional finding that CATACO 
agreed to reimburse antidumping duties warrants a different result 
under these unusual circumstances. A finding of reimbursement is 
necessarily exporter-importer specific, and is treated as a unique 
adjustment. Moreover, as we are applying AFA in this instance, the 
reimbursement adjustment is exogenous to the normal calculation of the 
dumping margin. In order to properly account for CATACO's reimbursement 
activities, the Department will adjust CATACO's cash deposit and 
assessment rates, but not apply the adjustment to the rest of the 
Vietnam-Wide Entity. In this unique situation in which CATACO 
terminated verification and where we also found reimbursement of 
antidumping duties, it is appropriate to assign CATACO a rate inclusive 
of the Vietnam-Wide Entity rate and the reimbursement adjustment.\3\ 
Consequently, the cash deposit rate assigned to CATACO for these final 
results is 80.88 percent.\4\ See CATACO Final Analysis Memo at 2-3. See 
also Final Decision Memo at Comments 1 and 2.
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    \3\ As part of the adverse inference, the Department's finding 
of reimbursement will be applied to all of CATACO's importers for 
cash deposit and assessment purposes. See CATACO Final Analysis Memo 
at 2-3.
    \4\ The Department corroborated the Vietnam-wide rate of 63.88 
percent component of the 80.88 percent in the Preliminary Results. 
No interested party commented on the Department's corroboration of 
this rate, thus the Vietnam-wide rate of 63.88 percent remains 
unchanged for the final results.
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Phan Quan Company (``Phan Quan'')

    In the Preliminary Results, the Department assigned total AFA to 
the Vietnam-Wide Entity, including Phan Quan. The Department did not 
receive any comments regarding the Vietnam-Wide Entity or Phan Quan. 
Therefore, for the final results, we continue to apply AFA to the 
Vietnam-Wide Entity and to treat Phan Quan as part of the Vietnam-Wide 
Entity.

Final Results of Review

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

------------------------------------------------------------------------
                                                       Weighted-Average
                Manufacturer/Exporter                  Margin (Percent)
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Vinh Hoan...........................................                6.81
CATACO..............................................               80.88
Vietnam-Wide Entity\5\..............................              63.88
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\5\ The Vietnam-wide Entity includes Phan Quan.

Assessment

    The Department will determine, and the U.S. Customs and Border 
Protection (``CBP'') shall assess, antidumping duties on all 
appropriate entries, pursuant to 19 CFR 351.212(b). We have calculated 
importer-specific duty assessment rates on the basis of the ratio

[[Page 14173]]

of the total amount of antidumping duties calculated for the examined 
sales to the total entered value of the examined sales for each 
importer as reported by Vinh Hoan and CATACO. In accordance with 19 CFR 
351.106(c)(2), we will instruct CBP to liquidate, without regard to 
antidumping duties, all entries of subject merchandise during the POR 
for which the importer-specific assessment rate is zero or de minimis 
(i.e., less than 0.50 percent). To determine whether the per-unit duty 
assessment rates are de minimis, in accordance with the requirement set 
forth in 19 CFR 351.106(c)(2), we calculated importer-specific ad 
valorem ratios based on export prices. We will direct CBP to apply the 
resulting assessment rates to the entered customs values for the 
subject merchandise on each of the importer's entries during the review 
period. The Department will issue appropriate assessment instructions 
directly to the CBP within 15 days of publication of the final results 
of this administrative review.

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 be the Vietnam-
wide rate of 63.88 percent, as explained in the Final Decision Memo and 
CATACO Final Analysis Memo. These deposit requirements, when imposed, 
shall remain in effect until publication of the final results of the 
next administrative review.

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 reminder to parties subject to 
administrative protective orders (``APO'') of their responsibility 
concerning the return or destruction of proprietary information 
disclosed under APO in accordance with 19 CFR 351.305, which continues 
to govern business proprietary information in this segment of the 
proceeding. Timely written notification of the return/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 this administrative review and notice 
in accordance with sections 751(a)(1) and 777(i) of the Act.

    Dated: March 13, 2006.
David M. Spooner,
Assistant Secretary for Import Administration.

Appendix I - Decision Memorandum

ISSUES FOR THE FINAL RESULTS:

Comment 1: Total Adverse Facts Available (``AFA'') for CATACO
Comment 2: AFA Calculation Methodology
Comment 3: Surrogate Factor Valuations (Whole Fish, Fish Oil, Fish 
Waste)
Comment 4: Byproduct Offset Cap
Comment 5: Importer-Specific Assessment Rates
Comment 6: Vinh Hoan Verification Clarifications (Byproduct Packing, 
Capacity, Telephone Communications)
[FR Doc. E6-4070 Filed 3-20-06; 8:45 am]
BILLING CODE 3510-DS-S