[Federal Register Volume 71, Number 130 (Friday, July 7, 2006)]
[Notices]
[Pages 38608-38611]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-10662]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-552-801]


Circumvention and Scope Inquiries on the Antidumping Duty Order 
on Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: 
Partial Affirmative Final Determination of Circumvention of the 
Antidumping Duty Order, Partial Final Termination of Circumvention 
Inquiry and Final Rescission of Scope Inquiry

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

Final Determination

    We determine that frozen fish fillets produced by Lian Heng Trading 
Co. Ltd. (``Lian Heng Trading'') and Lian Heng

[[Page 38609]]

Investment Co. Ltd. (``Lian Heng Investment'') (collectively, ``Lian 
Heng''),\1\ are circumventing the antidumping duty order on frozen fish 
fillets from the Socialist Republic of Vietnam (``Vietnam''), as 
provided in section 781(b) of the Tariff Act of 1930, as amended (``the 
Act''). See Notice of Antidumping Duty Order: Certain Frozen Fish 
Fillets from the Socialist Republic of Vietnam, 68 FR 47909 (August 12, 
2003) (``Order''). In addition, we determine that frozen fish fillets 
produced by Lian Heng are covered by the antidumping duty order on 
frozen fish fillets from Vietnam. We are also terminating the 
circumvention inquiry with respect to L.S.H. (Cambodia) Pte. Ltd. 
(``L.S.H.''), and Sun Wah Fisheries Co. Ltd. (``Sun Wah''), and 
rescinding the concurrently initiated scope inquiry. See Memorandum 
from Stephen J. Claeys, Deputy Assistant Secretary, Import 
Administration to David M. Spooner, Assistant Secretary, Import 
Administration (``Decision Memorandum''), dated June 16, 2006.
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    \1\ Lian Heng Trading Co. Ltd. (``Lian Heng Trading'') or Lian 
Heng Investment Co. Ltd. (``Lian Heng Investment'') (collectively 
``Lian Heng''). Lian Heng Trading and Lian Heng Investment are two 
separate entities. However, the two companies share the same 
Chairman and Chief Executive Officer, and both companies have 
exported subject merchandise to the United States.

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EFFECTIVE DATE: July 7, 2006.

FOR FURTHER INFORMATION CONTACT: Alex Villanueva, Import 
Administration, International Trade Administration, U.S. Department of 
Commerce, 14th Street and Constitution Avenue, NW, Washington, DC, 
20230; telephone (202) 482-3208.

SUPPLEMENTARY INFORMATION:

Background

    On February 22, 2006, the Department published the preliminary 
circumvention determination and rescission of scope inquiry. See Notice 
of Partial Affirmative Preliminary Determination of Circumvention, 
Preliminary Rescission of Scope Inquiry and Extension of Final 
Determination, 71 FR 9068 (February 22, 2006) (``Preliminary 
Determination'') . On March 30, 2006, the Department was notified by 
the International Trade Commission (``ITC'') that consultations 
pursuant to section 781(e)(2) of the Act were not necessary. See 
Memorandum to the File from Alex Villanueva, Program Manager, dated 
April 3, 2006. On April 5, 2006, Piazza Seafood World LLC (``Piazza'') 
submitted new information on the record. On April 6, 2006, the 
Department notified all interested parties that it was retaining 
Piazza's April 5, 2006, submission in its entirety and that additional 
information could be placed on the record by C.O.B. April 10, 2006. See 
Memorandum to the File from Alex Villanueva, Program Manager, dated 
April 6, 2006. The Department also informed parties that the deadline 
for submission of case and rebuttal briefs would be extended until 
April 19, 2006, and May 3, 2006, respectively. See Id. On April 10, 
2006, Petitioners and Piazza submitted additional new information. On 
April 19, 2006, Petitioners and Piazza filed case briefs. On May 3, 
2006, Petitioners and Piazza filed rebuttal case briefs. On June 9, 
2006, the Department held a public hearing.

Scope of the Antidumpng Duty 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 this proceeding is 
dispositive. See Order at 47909.
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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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Final Rescission of Scope Inquiry

    The Department continues to find that rescission of the scope 
inquiry is appropriate for the reasons stated in the Preliminary 
Determination. See Decision Memorandum at Comment 1.

Termination of the Circumvention Inquiry for L.S.H. and Sun Wah

    The Department continues to find that it is appropriate to 
terminate circumvention inquiry with respect to L.S.H. and Sun Wah for 
the reasons stated in the Preliminary Determination. See Decision 
Memorandum at Comment 4. As a result, no action will be taken with 
respect to exports of frozen fish fillets to the United States from 
these companies.

Statutory Provisions Regarding Circumvention

    Section 781(b)(1) of the Act provides that the Department may find 
circumvention of an antidumping duty order when merchandise of the same 
class or kind subject to the order is completed or assembled in a 
foreign country other than the country to which the order applies. In 
conducting circumvention inquiries of an antidumping duty order under 
section 781(b) of the Act, the Department relies upon the following 
criteria: (A) merchandise imported into the United States is of the 
same class or kind as any merchandise produced in a foreign country 
that is subject to an antidumping duty order; (B) before importation 
into the United States, such imported merchandise is completed or 
assembled in another foreign country from merchandise which is subject 
to the order or produced in the foreign country that is subject to the 
order; (C) the process of assembly or completion in the foreign country 
referred to in (B) is minor or insignificant; and (D) the value of the 
merchandise produced in the foreign country to which the antidumping 
duty order applies is a significant portion of the total value of the 
merchandise exported to the United States and (E) the administering 
authority determines that action is appropriate to prevent evasion of 
such order or finding, the administering authority, after taking into 
account any advice provided by the Commission under section 781(e) of 
the Act, may include such imported merchandise within the scope of the 
such order or finding at any time such order or finding is in effect.
    Section 781(b)(2) of the Act provides for the determination of 
whether the

[[Page 38610]]

process is minor or insignificant. In determining whether the process 
of assembly or completion is minor or insignificant under paragraph 
(1)(C), the administering authority shall take into account (A) the 
level of investment in the foreign country, (B) level of research and 
development in the foreign country, (C) nature of the production 
process in the foreign country, (D) extent of production facilities in 
the foreign country, and (E) whether the value of the processing 
performed in the foreign country represents a small proportion of the 
value of the merchandise imported into the United States.
    Section 781(b)(3) of the Act further provides that, in determining 
whether to include merchandise assembled or completed in a foreign 
country in an antidumping duty order or a finding under paragraph (1), 
the Department shall take into account: (A) the pattern of trade, 
including sourcing patterns; (B) whether the manufacturer or exporter 
of the merchandise described in accordance with section 781(b)(1)(B) of 
the Act is affiliated with the person who uses the merchandise 
described in accordance with section 781(b)(1)(B) to assemble or 
complete in the foreign country the merchandise that is subsequently 
imported in to the United States; and (C) whether imports into the 
foreign country of the merchandise described in accordance with section 
781(b)(1)(B) have increased after the initiation of the investigation 
which resulted in the issuance of such order or finding.
    Analysis
    We considered all of the comments submitted by the parties and find 
that application of adverse facts available, as applied to the factors 
under section 781(b)(1) of the Act, is appropriate. Specifically, with 
respect to section 781(b)(1)(A) of the Act, we find that the product 
subject to the circumvention inquiry and exported to the United States 
by Lian Heng, frozen fish fillets, is the same class or kind of 
merchandise subject to the Order. With respect to section 
781(b)(1)(B)(ii) of the Act, we find that, before importation, frozen 
fish fillets are completed by Lian Heng in Cambodia from Vietnamese-
origin whole, live fish. With respect to section 781(b)(1)(C) of the 
Act, we find that, based on adverse facts available due to Lian Heng's 
failure to provide data that could be verified, the processing of basa 
and tra fish into frozen fish fillets with respect to Lian Heng's 
exports from Cambodia is a minor or insignificant process.\3\ The 
Department also continues to find that under section 781(b)(1)(D) of 
the Act, based on Petitioners' record evidence, and as adverse facts 
available due to Lian Heng's failure to provide data that could be 
verified, the value of the Vietnamese-origin whole, live fish is 
significant compared to the value of the frozen fish fillets. 
Therefore, pursuant to section 781(b)(1)(E) of the Act, we affirm our 
preliminary determination that action is appropriate and necessary to 
prevent Lian Heng from circumventing the antidumping duty order on 
frozen fish fillets from Vietnam. Additionally, based on the additional 
factors to consider under section 781(b)(3) of the Act, we find that 
the patterns of trade and the levels of Cambodian importation of 
Vietnamese-origin whole, live fish support an affirmative finding of 
circumvention.
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    \3\ To determine whether a process is minor or insignificant 
pursuant to section 781(b)(1)(C) of the Act, the Department must 
consider the factors in section 781(b)(2) of the Act.
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    Consequently, under sections 781(b)(1), (2), and (3) of the Act, we 
find that Lian Heng has circumvented the Order by importing Vietnamese-
origin whole live fish into Cambodia, where it was subsequently 
processed and completed into frozen fish fillets for export to the 
United States. Thus, pursuant to section 781(b) of the Act, frozen fish 
fillets processed in Cambodia by Lian Heng from Vietnamese-origin 
whole, live fish for export to the United States should be included in 
the antidumping duty order on frozen fish fillets from Vietnam. 
Finally, because the Department continues to find that AFA is 
appropriate in this final determination, the Department relied on the 
information supplied by Petitioners, and subsequently used for purposes 
of initiating this inquiry, to corroborate the secondary information 
used as adverse facts available, pursuant to section 776(c) of the Act. 
We find that the information supplied by Petitioners is reliable and 
relevant because it is based upon information from public sources 
including government publications regarding the processing of live fish 
into fish fillets from Cambodia. In addition, Petitioners provided 
information from Agifish, the largest fish fillets exporter from 
Vietnam, which the Department verified in the underlying investigation 
as well as information used by the ITC in making its final injury 
determination. Therefore, we find that the secondary information used 
as adverse facts available has probative value.
    All issues raised by the interested parties to which we have 
responded are listed in the Appendix to this notice and addressed in 
the Issues and Decision Memorandum, which is hereby adopted by this 
notice. Parties can find a complete discussion of the issues raised in 
this inquiry and the corresponding recommendation in this public 
memorandum, which are on file in the Central Records Unit (``CRU''), 
Room B-099 of the main Department of Commerce building. In addition, a 
complete version of the Issues and Decision Memorandum can be accessed 
directly on the internet at http://ia.ita.doc.gov/. The paper copy and 
electronic version of the Issues and Decision Memorandum are identical 
in content.

Continuation of Suspension of Liquidation

    In accordance with section 733(d) of the Act, the Department will 
continue to direct CBP to suspend liquidation and to require a cash 
deposit of estimated duties, at the Vietnam-wide rate, on all 
unliquidated entries of frozen fish fillets produced by Lian Heng that 
were entered, or withdrawn from warehouse, for consumption from October 
22, 2004, the date of initiation of the circumvention inquiry, through 
July 15, 2005.
    For all entries of frozen fish fillets produced by Lian Heng 
entered on or after July 16, 2005, the Department will direct CBP to 
allow Lian Heng to certify that no Vietnamese-origin fish was used in 
the production of the frozen fish fillets. The Department will not 
request that CBP suspend liquidation, or require a cash deposit of 
estimated duties, at the Vietnam-wide rate, for any entries of frozen 
fish fillets accompanied by the certification in Appendix II in this 
notice. However, the Department will direct CBP to suspend liquidation 
and to require a cash deposit of estimated duties, at the Vietnam-wide 
rate of 63.88 percent of any entries of frozen fish fillets not 
accompanied by this certification in Appendix II of this notice.
    The Department will not direct CBP to take any action with respect 
to Sun Wah and L.S.H. or any other Cambodian exporter other than Lian 
Heng.

Future Administrative Reviews

    If requested, the Department may expand the third administrative 
review period back to October 22, 2004, the date of initiation of the 
circumvention inquiry, to include all of Lian Heng's entries covered by 
this determination. In addition, we hereby serve notice to Lian Heng 
that any certified entries are subject to verification by the 
Department. If a review of these certified entries is conducted, the 
Department will, at a minimum,

[[Page 38611]]

examine whole fish country of origin documentation that Lian Heng is 
required to maintain, as an exporter of fish products to the United 
States, by the United States Food and Drug Administration's Hazard 
Analysis Critical Control Point (``HACCP'')\4\ program and by the 
Bioterrorism Act of 2002.\5\ The Department will also examine any other 
records Lian Heng maintains in its normal course of business supporting 
its certifications that no Vietnamese-origin fish was used in the 
production of its frozen fish fillets.
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    \4\ Hazard Analysis Critical Control Point. Details regarding 
this program can be found at http://www.cfsan.fda.gov/lrd/haccp.html.
    \5\ Details regarding the Bioterrorism Act of 2002 can be found 
at: http://www.fda.gov/oc/bioterrorism/bioact.html.
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Notice to Parties

    This notice also serves as the only reminder to parties subject to 
the administrative protective orders (``APO'') of their responsibility 
concerning the return or destruction of proprietary information 
disclosed under APO in accordance with section 351.305 of the 
Department's regulations. 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.
    This final circumvention determination is in accordance with 
section 781(b) of the Act and 19 CFR 351.225.

    Dated: June 30, 2006.
David M. Spooner,
Assistant Secretarystfor Import Administration.

Appendix I

Comment 1: Rescission of Scope Request
Comment 2: Lian Heng Determination
    A. Application of AFA and the Criteria under Section 781(b) of the 
Act
    B. Corroboration of AFA
Comment 3: Certification Requirements
Comment 4: Partial Rescission of Circumvention Inquiry

Appendix II

Certification of Lian Heng\1\
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    \1\ Lian Heng Trading Co. Ltd. (``Lian Heng Trading'') or Lian 
Heng Investment Co. Ltd. (``Lian Heng Investment'') (collectively 
``Lian Heng'')
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CERTIFICATION TO U.S. CUSTOMS AND BORDER PROTECTION

    1. Lian Heng hereby certifies that the frozen fish fillets being 
exported and subject to this certification were not produced from fish 
of Vietnamese origin of the following species: Pangasius Bocourti 
(commonly known as basa or trey basa), Pangasius Hypophthalmus (also 
known as Pangasius Pangasius and commonly known as tra or trey pra), or 
Pangasius Micronemus.
    2. By signing this certificate, Lian Heng also hereby agrees to 
maintain sufficient documentation supporting the above statement such 
as country of origin certificates for all fish used to process the 
exported frozen fish fillets.\2\ Further, Lian Heng agrees to submit to 
verification of the underlying documentation supporting the above 
statement. Lian Heng agrees that failure to submit to verification of 
the documentation supporting these statements will result in immediate 
revocation of Lian Heng's certification rights and that Lian Heng will 
be required to post a cash deposit equal to the Vietnam-wide entity 
rate on all entries of frozen fish fillets of the species Pangasius 
Bocourti (commonly known as basa or trey basa), Pangasius Hypophthalmus 
(also known as Pangasius Pangasius and commonly known as tra or trey 
pra), or Pangasius Micronemus. In addition, if the Department of 
Commerce identifies any misrepresentation or inconsistencies regarding 
the certifications, it may report the matter to U.S. Customs and Border 
Protection for possible enforcement action.
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    \2\ Documentation may include, but is not limited to the records 
that (EXPORTER OF RECORD) is required to maintain by the United 
States Food and Drug Administration's HACCP program and Bioterrorism 
Act of 2002 and other documents kept in the normal course of 
business.
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    Signature:
    Printed Name:
    Title:

[FR Doc. E6-10662 Filed 7-6-06; 8:45 am]
BILLING CODE 3510-DS-S