[Federal Register Volume 76, Number 16 (Tuesday, January 25, 2011)]
[Notices]
[Pages 4292-4298]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-1381]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-552-801]


Certain Frozen Fish Fillets From the Socialist Republic of 
Vietnam: Preliminary Results of Antidumping Duty New Shipper Reviews

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

SUMMARY: On February 1, 2005, the Department of Commerce 
(``Department'') published in the Federal Register the antidumping duty 
order on certain frozen fish fillets from the Socialist Republic of 
Vietnam (``Vietnam''). See Notice of Antidumping Duty Order: Certain 
Frozen Fish Fillets from the Socialist Republic of Vietnam, 68 FR 47909 
(August 12, 2003) (``Order''). The Department is conducting two new 
shipper reviews (``NSR'') of the Order, covering the period of review 
(``POR'') of August 1, 2009, through February 15, 2010. 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 entries of subject merchandise during the POR for 
which the importer-specific assessment rates are above de minimis.

DATES: Effective Date: January 25, 2011

FOR FURTHER INFORMATION CONTACT: Alan Ray, 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) 482-5403.

SUPPLEMENTARY INFORMATION: 

General Background

    On March 17, 2010, and March 19, 2010, pursuant to section 
751(a)(2)(B)(i) of the Tariff Act of 1930, as amended (the ``Act''), 
and 19 CFR 351.214(c), the Department received NSR requests from Thien 
Ma Seafood Company, Ltd. (``THIMACO'') and International Development & 
Investment Corporation (``IDI'') (collectively, ``Respondents''), 
respectively. THIMACO and IDI certified that they were the producers 
and exporters of the subject merchandise upon which the request was 
based.
    On March 29, 2010, the Department published the initiation NSR on 
frozen fish fillets from Vietnam covering IDI and THIMACO. See Certain 
Frozen Fish Fillets From the Socialist Republic of Vietnam: Initiation 
of Antidumping Duty New Shipper Reviews, 75 FR 15416 (March 29, 2010).
    On March 25, 2010, the Department issued its original antidumping 
duty questionnaire to THIMACO and IDI. Between April 15, 2010, and 
September 29, 2010, THIMACO and IDI submitted responses to the original 
and supplemental sections A, C, and D antidumping duty questionnaires.

Extension of Time Limits

    On August 9, 2010, the Department extended the deadline for the 
preliminary results of these reviews by 120 days, to January 17, 2011. 
However, the notice incorrectly listed the deadline for the preliminary 
results of the reviews as January 17, 2010, rather than January 17, 
2011. See Certain Frozen Fish Fillets from the Socialist Republic of 
Vietnam: Extension of Time Limit for Preliminary Results of the Seventh 
Antidumping Duty New Shipper Reviews, 74 FR 47771 (August 9, 2010). The 
Department therefore published a correction, noting the proper deadline 
as January 17, 2011. See Certain Frozen Fish Fillets From the Socialist 
Republic of Vietnam: Correction of Date for the Extension of Time Limit 
for Preliminary Results of the Seventh Antidumping Duty New Shipper 
Reviews, 75 FR 57261(September 20, 2010).

Surrogate Country and Surrogate Values

    On July 28, 2010, the Department sent interested parties a letter 
requesting comments on surrogate country selection and information 
pertaining to valuing factors of production (``FOP''). On September 10, 
2010, IDI, THIMACO, and Petitioners \1\ submitted surrogate country 
comments and surrogate value (``SV'') data. On September 20, 2010, IDI, 
THIMACO, and Petitioners submitted rebuttal comments to the September 
10, 2010, submissions.
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    \1\ The Catfish Farmers of America and individual U.S. Catfish 
Processors: America's Catch, Consolidated Catfish Companies, LLC dba 
Country Select Catfish, Delta Pride Catfish, Inc., Harvest Select 
Catfish, Inc., Heartland Catfish Company, Pride of the Pond, Simmons 
Farm Raised Catfish, Inc., and Southern Pride Catfish Company LLC 
(collectively, ``Petitioners'').
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Verification

    Pursuant to 19 CFR 351.307(b)(iv), we conducted verification of the 
farming FOPs for THIMACO between November 2, 2010, and November 5, 
2010. See Memorandum to the File, From Alan Ray, Case Analyst, Office 
9, through Alex Villanueva, Program Manager, Office 9: Verification of 
Factors of Production Responses of Thien Ma Seafood Company Ltd., in 
the Antidumping Duty New Shipper Reviews of Certain Frozen Fish Fillets 
from the Socialist Republic of Vietnam (``Verification Report''), 
issued concurrently with these preliminary results.

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

[[Page 4293]]

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'').\2\ 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.
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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. Until February 1, 2007, these products were classifiable 
under tariff article code 0304.20.60.33 (Frozen Fish Fillets of the 
species Pangasius including basa and tra) of the HTSUS.
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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. See Certain Frozen Fish Fillets 
From the Socialist Republic of Vietnam: Final Results of the 
Antidumping Duty Administrative Review and New Shipper Reviews, 74 FR 
11349 (March 17, 2009). None of the parties to this proceeding have 
contested such treatment. Accordingly, we calculated normal value 
(``NV'') in accordance with section 773(c) of the Act, which applies to 
NME countries.

Separate Rate Determinations

    In proceedings involving NME countries, there is a rebuttable 
presumption that all companies within the country 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 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 by the Notice of 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'').

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: (1) An absence of restrictive stipulations associated with an 
individual exporter's business and export licenses; and (2) any 
legislative enactments decentralizing control of companies.
    In this review, THIMACO and IDI submitted complete responses to the 
separate rates section of the Department's NME questionnaire. The 
evidence submitted by IDI and THIMACO includes government laws and 
regulations on corporate ownership, business licenses, and narrative 
information regarding each company's operations and selection of 
management. The evidence provided by IDI and THIMACO supports a finding 
of a de jure absence of government control over each of its export 
activities. We have no information in this proceeding that would cause 
us to reconsider this determination. Thus, we believe that the evidence 
on the record supports a preliminary finding of an absence of de jure 
government control based on: (1) An absence of restrictive stipulations 
associated with the exporter's business license; and (2) 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: (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, IDI and THIMACO each submitted 
evidence indicating an absence of de facto government control over its 
export activities. Specifically, this evidence indicates that: (1) IDI 
and THIMACO set their own export prices independent of the government 
and without the approval of a government authority; (2) IDI and THIMACO 
retain the proceeds from their sales and make independent decisions 
regarding the disposition of profits or financing of losses; (3) IDI 
and THIMACO have 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) there is no restriction on 
any of either company's use of export revenues. Therefore, the 
Department preliminarily finds that IDI and THIMACO have established 
prima facie that they qualify for separate rates under the criteria 
established by Silicon Carbide and Sparklers.

New Shipper Review Bona Fide Analysis

    Consistent with the Department's practice, we investigated the bona 
fide nature of the sales made by IDI and THIMACO in these NSRs. We 
found that the sales by IDI and THIMACO were made on a bona fide basis. 
Based on our investigation into the bona fide nature of the sales, the 
questionnaire responses submitted by IDI and THIMACO, and our 
verification, as well the company's eligibility for separate rates (see 
Separate Rate Determinations section above), we preliminarily determine 
that IDI and THIMACO have met the requirements to qualify as new 
shippers during this POR. Therefore, for the purposes of these 
preliminary results of review, we are treating IDI's and THIMACO's 
sales of subject merchandise to the United States as appropriate 
transactions for these NSRs.\3\
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    \3\ For more detailed discussion of this issue, see Memorandum 
to the File, From Alan Ray, Case Analyst, Office 9, Through Alex 
Villanueva, Program Manager, Office 9: Bona Fide Nature of the Sale 
in the Antidumping Duty New Shipper Reviews of Certain Frozen Fish 
Fillets from the Socialist Republic of Vietnam: Thien Ma Seafood 
Company Ltd., (``THIMACO'') dated January 17, 2010, and Memorandum 
from Alan Ray, Case Analyst, Office 9, through Alex Villanueva, 
Program Manager, Office 9: Bona Fide Nature of the Sale in the 
Antidumping Duty New Shipper Reviews of Certain Frozen Fish Fillets 
from the Socialist Republic of Vietnam: International Development & 
Investment Corporation (``IDI''), dated January 17, 2010.

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[[Page 4294]]

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 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 the FOPs, the Department shall utilize, to the extent possible, 
the prices or costs of FOPs in one or more ME countries that are: (1) 
At a level of economic development comparable to that of the NME 
country; and (2) significant producers of comparable merchandise.
    Regarding the ``level of economic development,'' the Department 
places primary emphasis on per capita gross national income (``GNI'') 
as the measure of economic comparability.\4\ Using per capita GNI, the 
Department determined that Bangladesh, Pakistan, India, Sri Lanka, the 
Philippines, and Indonesia are countries comparable to Vietnam in terms 
of economic development.\5\
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    \4\ It is Departmental practice, pursuant to 19 CFR 408, to use 
per capita GNI, rather than per capita gross domestic product, 
because while the two measures are very similar, per capita GNI is 
reported across almost all countries by an authoritative source (the 
World Bank), and because the Department believes that the per capita 
GNI represents the single best measure of a country's level of total 
income and, thus, level of economic development. See Antidumping 
Methodologies: Market Economy Inputs, Expected Non-Market Economy 
Wages, Duty Drawback; and Request for Comments, 71 FR 61716, 61716 
at n. 2. (October 19, 2006) (``Antidumping Methodologies Notice'').
    \5\ The Department notes that these six countries are part of a 
non-exhaustive list of countries that are at a level of economic 
development comparable to the PRC. See Memorandum from Carol 
Showers, Director, Office of Policy, to Alex Villanueva, Program 
Manager, AD/CVD Enforcement, Office 9: Request for a list of 
Surrogate Countries for a New Shipper Review of the Antidumping Duty 
Order on Certain Frozen Fish Fillets (``Fish Fillets'') from the 
Socialist Republic of Vietnam, dated June 4, 2010.
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    As we have stated in prior administrative 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.\6\ In this case, we have 
determined to use the broader category of frozen fish fillets data 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.\7\ Of the non-exhaustive list of 
economically comparable countries mentioned above, all countries were 
also found to be significant producers. See ``Factor Valuations'' 
section below.
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    \6\ See Certain Magnesia Carbon Bricks From the People's 
Republic of China: Preliminary Determination of Sales at Less Than 
Fair Value and Postponement of Final Determination, 75 FR 11847 
(March 12, 2010) (unchanged for the final determination, 75 FR 45468 
(August 2, 2010)).
    \7\ Global Trade Atlas (``GTA'') data from 2007 is the only year 
in which all countries have data for comparison. 2008 and 2009 data 
contains gaps preventing the Department from making appropriate 
comparisons. See Memorandum to the File through Alex Villanueva, 
Program Manager, Office 9 from Alan Ray, Case Analyst, Office 9: 
Antidumping Duty New Shipper Review of Certain Frozen Fish Fillets 
from the Socialist Republic of Vietnam: Surrogate Values for the 
Preliminary Results, dated January 17, 2011 (``Surrogate Values 
Memo'') at Attachment I.
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    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. See Department Policy Bulletin No. 04.1: 
Non-Market Economy Surrogate Country Selection Process (March 1, 2004). 
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 SVs for whole fish on 
the record. This record does not contain any data for whole live fish 
for Indonesia, India, Sri Lanka, and Pakistan. Therefore, these 
countries will not be considered for primary surrogate country purposes 
at this time. However, this record does contain whole fish SV data from 
both Bangladesh and the Philippines.

Bangladesh

    Respondents placed on the record of this segment of the review the 
Economics of Aquaculture Feeding Practices in Selected Asia Countries: 
FAO Technical Paper 505 (Rome, 2007) (``FAO Report''). See Respondents' 
September 10, 2010, Surrogate Country and Value Comments.

Philippines

    In the preliminary results of the sixth administrative and new 
shipper reviews, the Department selected the Philippines as the primary 
surrogate country based on an analysis of the Bangledeshi and 
Philippine data on the record at the time of the preliminary 
results.\8\ The Philippine data submitted is the Fisheries Statistics 
of the Philippines, 2006-2008, published by the Bureau of Agricultural 
Statistics, Department of Agriculture (``Fisheries Statistics''), in 
November 2009. In the 6th AR Prelim, the Department found that the 
Fisheries Statistics satisfies each of the criteria that the Department 
considers in selecting a surrogate country and is closer to the POR 
than the FAO Report is to the POR.
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    \8\ See Certain Frozen Fish Fillets From the Socialist Republic 
of Vietnam: Notice of Preliminary Results and Partial Rescission of 
the Sixth Antidumping Duty Administrative and Sixth New Shipper 
Review, 75 FR 56062 (September 15, 2010) (``6th AR Prelim'').
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Analysis

    First, we note that both the FAO Report data and the Fisheries 
Statistics data are publicly available, tax- and duty-exclusive, and 
from an approved surrogate country. Therefore, we examined each source 
with respect to the broad market average, specificity, and 
contemporaneity. With respect to the broad market average, we find that 
the data from both the FAO Report and the Fisheries Statistics are 
considered broad market averages. As we have stated in prior reviews, 
the FAO Report data were obtained directly from 60 fish farmers located 
in a region that produces fish in Bangladesh. The FAO Report states why 
this particular region was selected (i.e., importance of this region in 
Pangas farming, the availability of hatchery produced fry, availability 
of ponds, warm climate, cheap and abundant labor). See FAO Report at 
38. Similarly, the Philippine data were collected from 34 respondents 
(i.e., ``farmers, operators, or caretakers. Other possible respondents 
are aqua farm traders and persons knowledgeable of aquaculture 
production in the locality.'') See Petitioners' September 10, 2010 
submission. Although we recognize that the Philippine data volume is 
only 12 metric tons, while the Bangladeshi data is 178 metric tons, for 
these preliminary results, we find that both of these sources are 
significant broad market averages because they represent national level 
data of similar quality using similar collection methods (i.e., 
interviews, questionnaires, etc.).
    With respect to specificity, the Bangladeshi data in the FAO Report 
specifically identify the whole live fish examined as Pangasianodon 
Hypopthalmus, which is one of the fish

[[Page 4295]]

fillets species identified in the scope of the Order. The Philippine 
data in the Fisheries Statistics are identified as Pangasius, which is 
the genus name for the fish fillets subject to the Order. First, we 
note that Pangasius is a genus name and Pangasianodon Hypopthalmus is a 
species in that genus. In prior reviews, we used whole fish SV data 
identified as Pangas and found it comparable to the fish input used by 
the respondents. See 3rd AR Final Results at Comment 4.\9\ In this 
case, although the whole fish data from Bangladesh are more specific to 
the input used by Respondents in producing fish fillets, we note that 
the record does not contain any information that would lead us to 
preliminarily determine that any difference between the two sources 
would necessarily generate a difference in price. Moreover, 
Pangasianodon Hypopthalmus is considered a component of Pangasius so it 
is reasonable to find that the Pangasius price from the Philippines in 
the Fisheries Statistics is likely to include Pangasianodon 
Hypopthalmus and other comparable species names also listed in the 
Order.
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    \9\ See Certain Frozen Fish Fillets From the Socialist Republic 
of Vietnam: Final Results of Antidumping Duty Administrative Review 
and Partial Rescission, 73 FR 15479 (March 24, 2008) and 
accompanying Issues and Decision Memorandum (``3rd AR Final 
Results'').
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    Finally, with respect to contemporaneity, we find that the 
Philippine data are closer to the POR as they are based on data 
collected in calendar year 2008. See Fisheries Statistics. The 
Bangladeshi data in the FAO Report are from October 2005 through 
February 2006. Therefore, the data from the Philippines are closer to 
the POR, than the Bangladeshi data.
    After examining all the factors considered in selecting the SV for 
fish as part of our surrogate country analysis, we find that the data 
available from the Philippines for the whole live fish represent the 
best SVs for these preliminary results. Given that Philippines data are 
closer to the POR, as equally a broad market average as the Bangladeshi 
data, and of a similar genus of the fish used by Respondents to produce 
fish fillets, we preliminarily select the Philippines as the primary 
surrogate country.

Affiliation

    Section 771(33) of the Act provides that:

    The following persons shall be considered to be `affiliated' or 
`affiliated persons':
    (A) Members of a family, including brothers and sisters (whether 
by the whole or half blood), spouse, ancestors, and lineal 
descendants;
    (B) Any officer or director of an organization and such 
organization;
    (C) Partners;
    (D) Employer and employee;
    (E) Any person directly or indirectly owning, controlling, or 
holding with power to vote, 5 percent or more of the outstanding 
voting stock or shares of any organization and such organization;
    (F) Two or more persons directly or indirectly controlling, 
controlled by, or under common control with, any person;
    (G) Any person who controls any other person and such other 
person.

    Additionally, section 771(33) of the Act stipulates that: ``For 
purposes of this paragraph, a person shall be considered to control 
another person if the person is legally or operationally in a position 
to exercise restrain or direction over the other person.''
    Finally, according to 19 CFR 351.401(f)(1) and (2), two or more 
companies may be treated as a single entity for antidumping duty 
purposes if (1) the producers are affiliated, (2) the producers have 
production facilities for similar or identical products that would not 
require substantial retooling of either facility in order to 
restructure manufacturing priorities, and (3) there is a significant 
potential for manipulation of price or production. See 19 CFR 
351.401(f)(1) and (2).
    We preliminarily find Golden Fish Seafood Company Limited 
(``GOFICO'') and THIMACO to be affiliated within the meaning of section 
771(33)(E) of the Act, based on ownership. THIMACO wholly owns GOFICO. 
See THIMACO's April 15, 2010, section A questionnaire response. With 
respect to whether the two companies should be considered a single 
entity, we look to the factors set forth in 19 CFR 351.401(f)(1) and 
(2). Those factors include the following: (1) If two or more affiliated 
producers have production facilities for similar or identical products 
that would not require substantial retooling of either facility in 
order to restructure manufacturing priorities and the Secretary 
concludes that there is a significant potential for the manipulation of 
price or production; (2) the level of common ownership; (3) the extent 
to which managerial employees or board members of one firm sit on the 
board of directors of an affiliated firm; and (4) whether operations 
are intertwined, such as through the sharing of sales information, 
involvement in production and pricing decisions, the sharing of 
facilities or employees, or signification transactions between the 
affiliated producers.
    THIMACO and GOFICO's relationship satisfies each of the factors we 
consider in determining whether companies should be considered a single 
entity. See id. Because both THIMACO and GOFICO have production 
facilities for identical products; share 100 percent common ownership; 
share 100 percent board members and certain management employees; and 
are intertwined in sharing of employees and facilities, and conducted 
significant transactions with each other during the POR, we find that 
THIMACO and GOFICO should be treated as a single entity in these 
preliminary results.

U.S. Price

Export Price

    For THIMACO's and IDI's export price (``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 and 
constructed export price was not otherwise warranted by the facts on 
the record. We calculated EP based on cost and freight foreign port 
price to the first unaffiliated purchaser in the United States. We also 
deducted foreign inland freight, and foreign brokerage and handling 
from the starting price (or gross unit price), in accordance with 
section 772(c) of the Act. We reviewed the movement expenses incurred 
in Vietnam by IDI and THIMACO and find that they were provided by an 
NME vendor or paid for using Vietnamese currency. Thus, we based the 
deduction of these movement charges on SVs. See Surrogate Values Memo 
for details regarding the SVs for movement expenses.

Normal Value

1. Methodology

    Section 773(c)(1)(B) of the Act provides that the Department shall 
determine the NV using an FOP methodology if the merchandise is 
exported from an NME country 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. The Department bases 
NV on the FOPs because the presence of government controls on various 
aspects of NMEs renders price comparisons and the calculation of 
production costs invalid under the Department's normal methodologies.
    Section 773(c)(1) of the Act provides that the Department shall 
determine the NV using an FOP methodology if: (1) The merchandise is 
exported from an NME country; and (2) 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.

[[Page 4296]]

    IDI reported the inputs beginning with the food-size fish because 
it is only a processor of fish fillets and had no hatchery or farming 
FOPs during the POR. Therefore, it only reported FOPs associated with 
the processing and packing stages of production. As such, the 
Department will account for all of IDI's reported inputs in the NV 
calculation.
    THIMACO reported the inputs beginning with fish fry and 
fingerlings, as it operated farms and processing facilities during the 
POR. See Verification Report and THIMACO's section D questionnaire 
response. However, at verification, it was found that THIMACO had 
provided unreliable farming FOPs. Specifically, four out of eight of 
the farming factors that THIMACO reported were found to not be accurate 
for the purpose of calculating NV. See Verification Report at 2. 
Therefore, the Department will account for THIMACO's reported inputs in 
the calculation of NV beginning with the purchase of food-size fish at 
the processing stage of production.

2. Factor Valuations \10\
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    \10\ In accordance with 19 CFR 351.301(c)(3)(ii), for the final 
results in an antidumping NSR, interested parties may submit 
publicly available information to value FOPs within 20 days after 
the date of publication of the preliminary results.
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    In accordance with section 773(c) of the Act, we calculated NV 
based on FOPs reported by IDI and THIMACO during the POR, although for 
THIMACO, NV was calculated beginning at the processing stage of 
production. The Department valued the processing FOPs using publicly 
available Philippine and Bangladeshi SVs. The Philippines was our first 
surrogate country source from which to obtain data to value inputs, and 
when data were not available from there, we used Bangladeshi sources. 
To calculate NV, we multiplied the reported per-unit factor-consumption 
rates by publicly available SVs. In selecting the SVs, we considered 
the quality, specificity, and contemporaneity of the data. As 
appropriate, we adjusted input prices by including freight costs to 
make them delivered prices. Specifically, we added to the SVs a 
surrogate freight cost, and in the case of import statistics SVs, using 
the shorter of the reported distance from the domestic supplier to the 
factory of production or the distance from the nearest seaport to the 
factory of production where appropriate. This adjustment is in 
accordance with court decision in Sigma Corp. v. United States, 24 
C.I.T. 97, 86 F. Supp. 2d 1344 (CIT 2000). Where we did not use import 
statistics, we calculated freight based on the reported distance from 
the supplier to the factory. 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 SVs if it has a reason to believe or suspect the source 
data may be subsidized.\11\ 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.\12\ 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.
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    \11\ See Omnibus Trade and Competitiveness Act of 1988, Conf. 
Report to Accompany H.R. 3, H.R. Rep. No. 576, 100th Cong., 2nd 
Sess. (1988) (``OTCA 1988'') at 590.
    \12\ See, e.g., Carbazole Violet Pigment 23 from India: Final 
Results of the Expedited Five-year (Sunset) Review of the 
Countervailing Duty Order, 75 FR 13257 (March 19, 2010) and 
accompanying Issues and Decision Memorandum at 4-5; Certain Cut-to-
Length Carbon Quality Steel Plate from Indonesia: Final Results of 
Expedited Sunset Review, 70 FR 45692 (August 8, 2005) and 
accompanying Issues and Decision Memorandum at 4; see Corrosion-
Resistant Carbon Steel Flat Products from the Republic of Korea: 
Final Results of Countervailing Duty Administrative Review, 74 FR 
2512 (January 15, 2009) and accompanying Issues and Decision 
Memorandum at 17, 19-20; see Final Affirmative Countervailing Duty 
Determination: Certain Hot-Rolled Carbon Steel Flat Products From 
Thailand, 66 FR 50410 (October 3, 2001) and accompanying Issues and 
Decision Memorandum at 23.
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    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.
    We valued FOPs in the preliminary results of this review using SVs, 
as follows (see Surrogate Values Memo for more specific details). 
Except as noted below, we valued raw materials and packing materials 
using weighted-average Philippines import values derived from GTA and 
Bangladeshi import values derived from U.N. Comtrade.\13\ The 
Philippines import statistics that we obtained from GTA were published 
by the Philippines National Statistics Office and are contemporaneous 
with the POR.\14\ The Bangladeshi import statistics were published by 
the 2005 Statistical Yearbooks of Bangladesh, published by the 
Bangladesh Bureau of Statistics, Planning Division, Ministry of 
Planning.
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    \13\ Available online at: http://www.gtis.com/gta.htm.
    \14\ See Surrogate Values Memo.
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    On May 14, 2010, the Court of Appeals for the Federal Circuit 
(``CAFC'') in Dorbest Ltd. v. United States, 604 F.3d 1363, 1372 (CAFC 
2010), found that the ``{regression-based{time}  method for calculating 
wage rates {as stipulated by 19 CFR 351.408(c)(3){time}  uses data not 
permitted by {the statutory requirements laid out in section 773 of the 
Act (i.e., 19 U.S.C. 1677b(c)){time} .'' The Department is continuing 
to evaluate options for determining labor values in light of the recent 
CAFC decision. However, for these preliminary results, we have 
calculated an hourly wage rate to use in valuing Respondents' reported 
labor input by averaging industry-specific earnings and/or wages in 
countries that are economically comparable to Vietnam and that are 
significant producers of comparable merchandise.
    For the preliminary results of these NSRs, the Department is 
valuing labor using a simple average industry-specific wage rate using 
earnings or wage data reported under Chapter 5B by the International 
Labor Organization (``ILO''). To achieve an industry-specific labor 
value, we relied on industry-specific labor data from the countries we 
determined to be both economically comparable to Vietnam, and 
significant producers of comparable merchandise.\15\ A full description 
of the industry-specific wage rate calculation methodology is provided 
in the Surrogate Values Memo. The Department calculated a simple 
average industry-specific wage rate of $1.09 for these preliminary 
results. Specifically,

[[Page 4297]]

for this review, the Department has calculated the wage rate using a 
simple average of the data provided to the ILO under Sub-Classification 
05 of the ISIC-Revision 3 standard by countries determined to be both 
economically comparable to Vietnam and significant producers of 
comparable merchandise. The Department finds the two-digit description 
under ISIC-Revision 3 (Fishing, operation of fish hatcheries and fish 
farms; service activities incidental to fishing) to be the best 
available wage rate SV on the record because it is specific and derived 
from industries that produce merchandise comparable to the subject 
merchandise. Consequently, we averaged the ILO industry-specific wage 
rate data or earnings data available from the following countries found 
to be economically comparable to Vietnam and significant producers of 
comparable merchandise: Bangladesh, Bolivia, Cote d'Ivoire, Egypt, 
Ghana, Guyana, India, Indonesia, Kenya, Mali, Mauritania, Nicaragua, 
Pakistan, the Philippines, Sao Tome and Principe, Senegal, Sri Lanka, 
Sudan, Yemen, and Zambia. For further information on the calculation of 
the wage rate, see Surrogate Values Memo.
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    \15\ The Department notes that for purposes of valuing wage 
rates alone, the Department believes the use of multiple data points 
is important given the nature of that input. See Certain Activated 
Carbon From the People's Republic of China: Final Results and 
Partial Rescission of Second Antidumping Duty Administrative Review, 
75 FR 70208 (November 17, 2010) and accompanying Issues and Decision 
Memorandum at Comment 4f. Accordingly, the Department's current 
practice is to define significant producers as any country with 
exports of comparable merchandise in deriving a list of wage rates 
to use in its calculations. For all other inputs, the Department 
continues to review several factors, and not exports alone, in 
determining whether or not a country is a significant producer of 
comparable merchandise.
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    The Department is using the financial statements of Bluefin Seafood 
Export, Inc. and RDEX Food International Phils., Inc. for the 
calculation of the surrogate financial ratios. Both of these companies 
are Philippine fish processors. Truck movement expenses were valued 
using the ``Cost of Doing Business in Camarines Sur.'' Brokerage and 
handling was valued using a price listed by the Philippine Tariff 
Commission. Finally, marine insurance was valued using a price listed 
by RJG Consultants.
    Philippine and other SVs denominated in foreign currencies have 
been converted to 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. These exchange rates 
can be accessed at the website of Import Administration.\16\ For 
further details regarding the SVs used for these preliminary results, 
see Surrogate Values Memo.
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    \16\ The Import Administration Web site is available at: http://ia.ita.doc.gov/exchange/index.html.
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Preliminary Results of Review

    The Department has preliminarily determined that the following 
dumping margins exist for the period August 1, 2009, through February 
15, 2010:

                Certain Frozen Fish Fillets From Vietnam
------------------------------------------------------------------------
                                                              Per unit
                   Manufacturer/exporter                     assessment
------------------------------------------------------------------------
THIMACO...................................................          3.25
IDI.......................................................          3.96
------------------------------------------------------------------------

Disclosure

    The Department will disclose to parties of this proceeding the 
calculations performed in reaching the preliminary results within five 
days of the date of publication of this notice in accordance with 19 
CFR 351.224(b).

Comments

    In accordance with 19 CFR 351.301(c)(3)(ii), for the final results 
of these NSRs, 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 19 CFR 
351.301(c)(1), for the final results of these NSRs, interested parties 
may submit factual information to rebut, clarify, or correct factual 
information submitted by an interested party within ten days of the 
applicable deadline for submission of such factual information. 
However, the Department notes that 19 CFR 351.301(c)(1) permits new 
information only insofar as it rebuts, clarifies, or corrects 
information recently placed on the record.\17\
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    \17\ See Glycine from the People's Republic of China: Final 
Results of Antidumping Duty Administrative Review and Final 
Rescission, in Part 72 FR 58809 (October 17, 2007), and accompanying 
Issues and Decision Memorandum at Comment 2.
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    Interested parties may submit case briefs and/or written comments 
no later than 30 days after the date of publication of the preliminary 
results of these NSRs. See 19 CFR 351.309(c)(ii). Rebuttal briefs and 
rebuttals to written comments, limited to issues raised in such briefs 
or comments, may be filed no later than five days after the deadline 
for submitting the case briefs. See 19 CFR 351.309(d). The Department 
requests that interested parties provide an executive summary of each 
argument contained within the case briefs and rebuttal briefs.
    Any interested party may request a hearing within 30 days of 
publication of these preliminary results. See 19 CFR 351.310(c). 
Requests should contain the following information: (1) The party's 
name, address, and telephone number; (2) the number of participants; 
and (3) a list of the issues to be discussed. Oral presentations will 
be limited to issues raised in the briefs. If we receive a request for 
a hearing, we plan to hold the hearing seven days after the deadline 
for submission of the rebuttal briefs at the U.S. Department of 
Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 
20230.
    The Department intends to issue the final results of these NSRs, 
which will include the results of its analysis raised in any such 
comments, within 90 days of publication of these preliminary results, 
pursuant to section 19 CFR 351.214(i).

Assessment Rates

    Upon completion of the final results, pursuant to 19 CFR 
351.212(b), the Department will determine, and CBP shall assess, 
antidumping duties on all appropriate entries on a per-unit basis.\18\ 
The Department intends to issue assessment instructions to CBP 15 days 
after the date of publication of the final results of review. If these 
preliminary results are adopted in our final results of review, the 
Department shall determine, and CBP shall assess, antidumping duties on 
all appropriate entries. Pursuant to 19 CFR 351.212(b)(1), we will 
calculate importer-specific (or customer) per-unit duty assessment 
rates. We will instruct CBP to assess antidumping duties on all 
appropriate entries covered by these reviews if any importer-specific 
assessment rate calculated in the final results of these reviews is 
above de minimis.
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    \18\ We divided the total dumping margins (calculated as the 
difference between NV and EP) for each importer by the total 
quantity of subject merchandise sold to that importer during the POR 
to calculate a per-unit assessment amount. 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.
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Cash-Deposit Requirements

    The following cash deposit requirements will be effective upon 
publication of the final results of these NSRs for all shipments of 
subject merchandise from THIMACO and IDI entered, or withdrawn from 
warehouse, for consumption on or after the publication date, as 
provided for by section 751(a)(2)(C) of the Act: (1) For subject 
merchandise produced and exported by THIMACO, the cash deposit rate 
will be $3.25/Kg; and (2) for subject merchandise produced and exported 
by IDI, the cash deposit rate will be $3.96/Kg. If the cash deposit 
rate calculated in the final results is zero or de minimis, no cash 
deposit will be required for those specific producer-exporters. These 
cash deposit requirements, when

[[Page 4298]]

imposed, shall remain in effect until further notice.

Notification to Importers

    This notice serves as a preliminary reminder to importers of its 
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 notice in accordance with 
sections 751(a)(2)(B) and 777(i) of the Act, and 19 CFR 351.214(h) and 
351.221(b)(4).

    Dated: January 14, 2011.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 2011-1381 Filed 1-24-11; 8:45 am]
BILLING CODE 3510-DS-P