[Federal Register Volume 76, Number 55 (Tuesday, March 22, 2011)]
[Notices]
[Pages 15941-15944]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-6564]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

International Trade Administration

[A-552-801]


Certain Frozen Fish Fillets From the Socialist Republic of 
Vietnam: Final Results of the Sixth Antidumping Duty Administrative 
Review and Sixth New Shipper Review

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

SUMMARY: On September 15, 2010, the Department of Commerce 
(``Department'') published the Preliminary Results of the sixth 
administrative review and sixth new shipper review of the antidumping 
duty order on certain frozen fish fillets (``frozen fish fillets'') 
from the Socialist Republic of Vietnam (``Vietnam'').\1\ We

[[Page 15942]]

gave interested parties an opportunity to comment on the Preliminary 
Results and, based upon our analysis of the comments and information 
received, we made changes to the margin calculations for the final 
results of these reviews. The final weighted-average margins are listed 
below in the ``Final Results of the Reviews'' section of this notice. 
The period of review (``POR'') is August 1, 2008, through July 31, 
2009.
---------------------------------------------------------------------------

    \1\ See Certain Frozen Fish Fillets From the Socialist Republic 
of Vietnam: Notice of Preliminary Results and Partial Rescission of 
the Sixth Antidumping Duty Administrative Review and Sixth New 
Shipper Review, 75 FR 56062 (September 15, 2010) (``Preliminary 
Results'').

---------------------------------------------------------------------------
DATES: Effective Date: March 22, 2011.

FOR FURTHER INFORMATION CONTACT: Emeka Chukwudebe or Javier Barrientos, 
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-
0219 or (202) 482-2243, respectively.

SUPPLEMENTARY INFORMATION:

Case History

    As noted above, on September 15, 2010, the Department published the 
Preliminary Results of this administrative and new shipper review. On 
September 16, 2010, and January 24, 2011, officials from the Government 
of Vietnam met with officials from the Department.\2\ We extended the 
deadlines for submission of surrogate value comments and case 
briefs.\3\ On October 7, 2010, majority staff members from the Senate 
Finance Committee met with officials from the Department.\4\ On 
November 5, 2010, following the recent decision in Dorbest,\5\ the 
Department placed wage rate data on the record for comments.\6\ Between 
November 25, 2010, and November 30, 2010, we conducted verification of 
Vinh Hoan Corporation (``Vinh Hoan''). On December 23, 2010, the 
Department fully extended the time limit for completion of the final 
results of this administrative review and new shipper review.\7\ On 
January 24, 2011, the Department placed new information on the record 
and invited comments from interested parties.
---------------------------------------------------------------------------

    \2\ See Memorandum to the file, from Julia Hancock, Special 
Assistant, Import Administration, dated September 21, 2010; see also 
Memorandum to the file, from James Doyle, Office Director, Import 
Administration, dated January 25, 2011.
    \3\ See Letter from Alex Villanueva, Program Manager, Office 9, 
to Interested Parties: Extending Surrogate Value Submission & 
Briefing Schedule for 6th New Shipper and 6th Antidumping 
Administrative Reviews of Certain Frozen Fish Fillets from the 
Socialist Republic of Vietnam (September 21, 2010). See also Letter 
from Alex Villanueva, Program Manager, Office 9, to Interested 
Parties: Extending Surrogate Value Submission for 6th New Shipper 
and 6th Antidumping Administrative Reviews of Certain Frozen Fish 
Fillets from the Socialist Republic of Vietnam. (October 13, 2010). 
See also Memorandum For: All Interested Parties, from Emeka 
Chukwudebe, Case Analyst, Import Administration, dated October 22, 
2010. See also Memorandum For: All Interested Parties, from Javier 
Barrientos, Case Analyst, Import Administration, dated November 22, 
2010.
    \4\ See Memorandum to the file, Re: sixth Administrative Review 
of Frozen Fish Fillets from the Socialist Republic of Vietnam 
(``Vietnam''), dated October 18, 2010.
    \5\ See Dorbest Limited v. United States, 604 F.3d 1363, 1372 
(Fed. Cir. 2010) (``Dorbest'').
    \6\ See Memorandum to the file through James C. Doyle, Office 9 
Director, and Alex Villanueva, Office 9 Program Manager, from Emeka 
Chukwudebe, Office 9 Case Analyst, Sixth Antidumping Duty 
Administrative and New Shipper Review of Certain Frozen Fish Fillets 
from the Socialist Republic of Vietnam (``Vietnam''): Industry-
Specific Wage Rate Selection (November 5, 2010).
    \7\ See Certain Frozen Fish Fillets From the Socialist Republic 
of Vietnam: Notice of Extension of Time Limit for the Final Results 
of the Sixth Antidumping Duty Administrative and New Shipper 
Reviews, 75 FR 80795 (December 23, 2010).
---------------------------------------------------------------------------

    On January 26, 2011, the Department held a public hearing.\8\ On 
February 8, 2011, counsel for Petitioners \9\ met with officials from 
the Department.\10\ On February 17, 2011, counsel for the respondents 
\11\ met with officials from the Department.\12\ We invited interested 
parties to comment on the Preliminary Results. Between November 22, 
2010, and February 14, 2011, we received case and rebuttal briefs from 
Petitioners, the respondents, separate rate respondents,\13\ as well as 
other interested parties \14\ in these reviews.\15\ As a result of our 
analysis, we have made changes to the Preliminary Results.
---------------------------------------------------------------------------

    \8\ See Letter to Interested Parties from James C. Doyle, Office 
9 Office Director, Sixth Antidumping Duty Administrative Review and 
Sixth New Shipper Review of Certain Frozen Fish Fillets from the 
Socialist Republic of Vietnam: Consolidated Public Hearing Schedule 
(January 26, 2011).
    \9\ Catfish Farmers of America and the following 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, 
and Simmons Farm Raised Catfish, Inc. (collectively, 
``Petitioners'').
    \10\ See Memorandum to the file, from Alex Villanueva, Program 
Manager, Import Administration, dated September 21, 2010.
    \11\ These companies include: Vinh Hoan; Vinh Quang Fisheries 
Corporation (``Vinh Quang''); and CUU Long Fish Joint Stock Company 
(``CL-Fish'').
    \12\ See Memorandum to the file, from Alex Villanueva, Program 
Manager, Import Administration, dated February 21, 2011.
    \13\ These companies include: (1) An Giang Fisheries Import and 
Export Joint Stock Company (aka Agifish or AnGiang Fisheries Import 
and Export); (2) Anvifish Co., Ltd.; (3) Anvifish Joint Stock 
Company (``Anvifish JSC''), (4) East Sea Seafoods Limited Liability 
Company (formerly known as East Sea Seafoods Joint Venture Co., 
Ltd.) (``ESS LLC''); and (5) East Sea Seafoods Joint Venture Co., 
Ltd.
    \14\ These include: (1) Richwell Group, Inc.; and 2) Vietnam 
Association of Seafood Exports and Producers.
    \15\ At the Department's request, interested parties submitted 
additional comments regarding information placed on the record as a 
result of the Department's January 24, 2011, meeting with officials 
from the Government of Vietnam.
---------------------------------------------------------------------------

Scope of the Order \16\
---------------------------------------------------------------------------

    \16\ See Notice of Antidumping Duty Order: Certain Frozen Fish 
Fillets From the Socialist Republic of Vietnam, 68 FR 47909 (August 
12, 2003) (``Order'').
---------------------------------------------------------------------------

    The product covered by the order is frozen fish fillets, including 
regular, shank, and strip fillets and portions thereof, whether or not 
breaded or marinated, of the species Pangasius Bocourti, Pangasius 
Hypophthalmus (also known as Pangasius Pangasius), and Pangasius 
Micronemus. Frozen fish fillets are lengthwise cuts of whole fish. The 
fillet products covered by the scope include boneless fillets with the 
belly flap intact (``regular'' fillets), boneless fillets with the 
belly flap removed (``shank'' fillets), boneless shank fillets cut into 
strips (``fillet strips/finger''), which include fillets cut into 
strips, chunks, blocks, skewers, or any other shape. Specifically 
excluded from the scope are frozen whole fish (whether or not dressed), 
frozen steaks, and frozen belly-flap nuggets. Frozen whole dressed fish 
are deheaded, skinned, and eviscerated. Steaks are bone-in, cross-
section cuts of dressed fish. Nuggets are the belly-flaps. The subject 
merchandise will be hereinafter referred to as frozen ``basa'' and 
``tra'' fillets, which are the Vietnamese common names for these 
species of fish. These products are classifiable under tariff article 
codes 1604.19.4000, 1604.19.5000, 0305.59.4000, 0304.29.6033 (Frozen 
Fish Fillets of the species Pangasius including basa and tra) of the 
Harmonized Tariff Schedule of the United States (``HTSUS'').\17\ 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.
---------------------------------------------------------------------------

    \17\ 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.
---------------------------------------------------------------------------

Analysis of Comments Received

    All issues raised in the case and rebuttal briefs by parties are 
addressed in ``Certain Frozen Fish Fillets from the Socialist Republic 
of Vietnam (``Vietnam''): Issues and Decision Memorandum for the Final 
Results,''

[[Page 15943]]

(March 14, 2011) (``I&D Memo''). A list of the issues which parties 
raised, and to which we responded in the I&D Memo, is attached to this 
notice as an Appendix. The I&D Memo is a public document and is on file 
in the Central Records Unit (``CRU''), Main Commerce Building, Room 
7046, and is accessible on the Department's Web site at http://www.trade.gov/ia. The paper copy and electronic version of the 
memorandum are identical in content.

Changes Since the Preliminary Results

    Based on a review of the record, verification, the hearing, as well 
as comments received from interested parties regarding our Preliminary 
Results, we have made certain revisions to the margin calculation for 
Vinh Hoan, Vinh Quang, and CL-Fish for the final results. For the 
reasons explained in the I&D Memo at Comment I, we have changed our 
surrogate country selection from the Philippines to Bangladesh. For all 
other changes to the calculations of Vinh Hoan, Vinh Quang, and CL-
Fish, see the I&D Memo and company specific analysis memorandum. For 
changes to the surrogate values, see the I&D Memo and ``Memorandum to 
the File, through Alex Villanueva, Program Manager, AC/CVD Operations, 
Office 9, from Javier Barrientos, Senior Case Analyst, and Emeka 
Chukwudebe, Case Analyst, AD/CVD Operations, Office 9, Sixth 
Antidumping Duty Administrative Review and Sixth New Shipper Review of 
Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: 
Surrogate Values for the Final Results,'' (March 14, 2011).

Use of Facts Available (``FA'') and Adverse Facts Available (``AFA'')

    Section 776(a) of the Tariff Act of 1930, as amended (``the Act'') 
provides that the Department shall apply FA if (1) necessary 
information is not on the record, or (2) an interested party or any 
other person (A) withholds information that has been requested, (B) 
fails to provide information within the deadlines established, or in 
the form and manner requested by the Department, subject to subsections 
(c)(1) and (e) of section 782 of the Act, (C) significantly impedes a 
proceeding, or (D) provides information that cannot be verified as 
provided by section 782(i) of the Act.
    Section 776(b) of the Act further provides that the Department may 
use an adverse inference in applying FA when a party has failed to 
cooperate by not acting to the best of its ability to comply with a 
request for information. Such an adverse inference may include reliance 
on information derived from the petition, the final determination, a 
previous administrative review, or other information placed on the 
record.
    Based on findings at verification, we are applying partial AFA to 
Vinh Hoan's freight distances because the Department finds that the 
information necessary to calculate an accurate and otherwise reliable 
margin is not available on the record. Specifically, the Department 
could not verify the distances to transport fish from some of Vinh 
Hoan's farms to its processing facilities. Consequently, in accordance 
with 776(b) of the Act, we find that an adverse inference is necessary 
because Vinh Hoan did not act to the best of its ability to provide the 
Department with verifiable data within its exclusive control. 
Therefore, for the final results, pursuant to 776(a)(2)(D) of the Act, 
we applied partial AFA to Vinh Hoan's freight distances. See Comment 9A 
of the I&D Memo.

Final Partial Rescission

    In the Preliminary Results, the Department preliminarily rescinded 
the review with respect to Acomfish and Binh An.\18\ These companies 
reported that they had no shipments of subject merchandise to the 
United States during the POR. As we stated in the Preliminary Results, 
our examination of shipment data from U.S. Customs and Border 
Protection (``CBP'') for these companies confirmed that there were no 
entries of subject merchandise from them during the POR.\19\ The 
Department did not receive any comments regarding the preliminary 
rescission of these companies claiming no shipments. Therefore, we are 
rescinding the administrative review with respect to Acomfish and Binh 
An. In addition, as explained in Comment VII of the I&D Memo, we are 
rescinding the review with respect to Anvifish JSC. Finally, we note 
that as Anvifish JSC was the only company receiving the Vietnam-Wide 
entity rate in the Preliminary Results, but is no longer under review, 
the Vietnam-Wide entity is also no longer under review.
---------------------------------------------------------------------------

    \18\ Asia Commerce Fisheries Joint Stock Company (aka Acomfish 
JSC) (``Acomfish'') and Binh An Seafood Joint Stock Co. (``Binh 
An'').
    \19\ See Preliminary Results.
---------------------------------------------------------------------------

Separate Rates

    The statute and the Department's regulations do not directly 
address the establishment of a rate to be applied to individual 
companies not selected for individual examination where the Department 
limited its examination in an administrative review pursuant to section 
777A(c)(2) of the Act. The Department's practice in this regard, in 
cases involving limited selection based on exporters accounting for the 
largest volumes of trade, has been to weight-average the rates for the 
selected companies excluding zero and de minimis rates and rates based 
entirely on AFA. Generally we have looked to section 735(c)(5) of the 
Act, which provides instructions for calculating the all-others rate in 
an investigation, for guidance when calculating the rate for 
respondents we did not individually examine in an administrative 
review. Section 735(c)(5)(A) of the Act instructs that we are not to 
calculate an all-others rate using any zero or de minimis margins or 
any margins based on total facts available. Section 735(c)(5)(B) of the 
Act also provides that, where all margins are zero, de minimis, or 
based on total FA, we may use ``any reasonable method'' for assigning 
the rate to non-selected respondents. One method that section 
735(c)(5)(B) of the Act contemplates as a possibility is ``averaging 
the estimated weighted average dumping margins determined for the 
exporters and producers individually investigated.''
    In the Preliminary Results, the Department applied to the separate 
rate companies the rate calculated for the single mandatory respondent 
in the administrative review. For these final results, the rate 
calculated for the single mandatory respondent is zero. While the 
statute contemplates that we may use an average of the zero, de minimis 
and AFA rates determined in an investigation, we have available in 
these reviews information that would not be available in an 
investigation, namely rates from prior proceedings. We have determined 
that it is more appropriate in these reviews to use a calculated rate 
from a previous segment to apply to the separate rate companies as this 
method does not rely on zero, de minimis or FA margins and there is no 
reason to find that it is not reasonably reflective of potential 
dumping margins for the non-selected companies. See Statement of 
Administrative Action (``SAA'') accompanying the Uruguay Round 
Agreements Act, H. Doc. 316, 103d Cong., Vol. 1 (1994) at 873. In these 
reviews, we have three companies that qualify for a separate rate: 
Agifish, ESS LLC and Southern Fishery Industries Company (``South 
Vina'').
    For the three separate rate respondents, Agifish, ESS LLC and South 
Vina, the most recent calculated rate from a previous administrative 
review that is not zero, de minimis or based on FA is $0.02 per 
kilogram, which was based on the calculated rate for QVD Food Company 
in the fourth

[[Page 15944]]

administrative review. See Certain Frozen Fish Fillets from the 
Socialist Republic of Vietnam: Amended Final Results of the Fourth 
Antidumping Duty Administrative Review, 74 FR 17816 (April 17, 2009). 
This is similar to the method applied in the most recently completed 
administrative review. See Certain Frozen Fish Fillets from the 
Socialist Republic of Vietnam: Final Results of the Antidumping Duty 
Administrative Review and New Shipper Reviews, 75 FR 12726 (March 17, 
2010) and accompanying Issues and Decision Memorandum.

Final Results of the Reviews

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

------------------------------------------------------------------------
                                      Weighted-average  margin  (dollars
              Exporter                          per kilogram)
------------------------------------------------------------------------
(1) Vinh Hoan......................  $0.00
(2) Vinh Quang.....................  0.00
(3) Agifish........................  0.02
(4) ESS LLC........................  0.02
(5) South Vina.....................  0.02
(6) CL-Fish \20\...................  0.00
------------------------------------------------------------------------


---------------------------------------------------------------------------

    \20\ CL-Fish is a new shipper review, aligned with, but not part 
of the administrative review.
---------------------------------------------------------------------------

Assessment

    Upon issuance of the final results, the Department will determine, 
and CBP shall assess, antidumping duties on all appropriate entries. 
The Department intends to issue assessment instructions to CBP 15 days 
after the date of publication of the final results of review. Pursuant 
to 19 CFR 351.212(b)(1), we will calculate importer-specific (or 
customer) per unit duty assessment rates based on the ratio of the 
total amount of the dumping margins calculated for the examined sales 
to the total entered value of those same sales. We will instruct CBP to 
assess antidumping duties on all appropriate entries covered by these 
reviews if any importer-specific assessment rate is above or de 
minimis.

Cash Deposit Requirements

    The following cash-deposit requirements will be effective upon 
publication of the final results of these administrative and new 
shipper reviews 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) For the exporters listed above, the cash deposit rate will be the 
rate established in these final results of review (except, if the rate 
is zero or de minimis, i.e., less than 0.5 percent, a zero cash deposit 
rate will be required for that company); (2) for previously 
investigated or reviewed Vietnamese and non-Vietnamese exporters not 
listed above that have separate rates, the cash deposit rate will 
continue to be the exporter-specific rate published for the most recent 
period; (3) for all Vietnamese exporters of subject merchandise which 
have not been found to be entitled to a separate rate, the cash deposit 
rate will be the Vietnamese-wide rate of $2.11 per kilogram; and (4) 
for all non-Vietnamese exporters of subject merchandise which have not 
received their own rate, the cash deposit rate will be the rate 
applicable to the Vietnamese exporters that supplied that non-
Vietnamese exporter. These deposit requirements, when imposed, shall 
remain in effect until further notice.

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 final reminder to parties subject to 
administrative protective order (``APO'') of their responsibility 
concerning the return or destruction of proprietary information 
disclosed under APO in accordance with 19 CFR 351.305. Timely written 
notification of the return or 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 these administrative and new shipper 
reviews and notice in accordance with sections 751(a)(1) and 777(i) of 
the Act.

    Dated: March 14, 2011.
Kim Glas,
Acting Deputy Assistant Secretary for Import Administration.

Appendix I--Issues & Decision Memorandum

General Issues

COMMENT I: SELECTION OF SURROGATE COUNTRY
    A. Economic Comparability
    B. Significant Producer of the Comparable Merchandise
    C. Data Considerations
COMMENT II: ZEROING
COMMENT III: LABOR RATE METHODOLOGY
COMMENT IV: SURROGATE VALUES
    A. Financial Ratios
    B. Salt
    C. Water
    D. STPP, CO Gas, PE bags, Carton, Tape, Label, Plastic Sheet, 
Banding, and Diesel
    E. Electricity
    F. Truck Freight
    G. Brokerage and Handling
    H. Containerization
    I. By-Products
    i. Fish Waste
    ii. Broken Meat
    iii. Fish Skins
    J. Adjustment for Finished Goods Inventory

Company-Specific Issues

COMMENT V: RATE FOR SOUTH VINA
COMMENT VI: RATE FOR VINH QUANG
    A. Indirect Selling Expenses
    B. Movement Expenses
    C. Packing Labor
COMMENT VII: RESCISSION OF ANVIFISH JSC
COMMENT VIII: CASH DEPOSIT INSTRUCTIONS FOR ESS LLC
COMMENT IX: RATE FOR VINH HOAN
    A. Freight Distances for Fish
    B. Farming Factors
    C. Electricity and Coal for Byproducts

[FR Doc. 2011-6564 Filed 3-21-11; 8:45 am]
BILLING CODE 3510-DS-P