[Federal Register Volume 74, Number 171 (Friday, September 4, 2009)]
[Notices]
[Pages 45805-45811]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-21429]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-552-801]


Certain Frozen Fish Fillets From the Socialist Republic of 
Vietnam: Notice of Preliminary Results of New Shipper Reviews and Fifth 
Antidumping Duty Administrative Review

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

SUMMARY: The Department of Commerce (``Department'') is conducting new 
shipper reviews and an administrative review of 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''). We preliminarily find that QVD Food 
Company Ltd. (``QVD''),\1\ Vinh Hoan Corporation (``Vinh Hoan''), 
Saigon-Mekong Fishery Co. (``SAMEFICO''), and Cadovimex II Seafood 
Import-Export & Processing Joint Stock Company (``Cadovimex II'') did 
not sell subject merchandise at less than normal value (``NV'') during 
the period of review (``POR''), August 1, 2007, through July 31, 2008.
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    \1\ The Department is treating QVD, QVD Dong Thap Food Co., Ltd. 
(``QVD DT''), and Thuan Hung Co., Ltd. (``Thuan Hung'') as a single 
entity in these preliminary results. Similarly, the Department is 
treating Vinh Hoan, Vinh Hoan USA Inc. (``Vinh Hoan USA''), and Van 
Duc Food Export Joint Stock Company (``Van Duc'') as a single 
entity. Section 351.401(f) of the Department's regulations define 
single entities as those affiliated producers who 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. 
For further analysis, see Affiliations section below.

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DATES: Effective Date: September 4, 2009.

FOR FURTHER INFORMATION CONTACT: Alan Ray (QVD), Javier Barrientos 
(Vinh Hoan), Alexis Polovina (SAMEFICO), and Tim Lord (Cadovimex II) 
Office 9, AD/CVD Operations, Import Administration, International Trade 
Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW., Washington, DC 20230; telephone (202) 482-
5403, (202) 482-2243, (202) 482-3927, and (202) 482-7425, respectively.

SUPPLEMENTARY INFORMATION: 

Case History

    On August 1, 2008, the Department published a notice of an 
opportunity to request an administrative review of the order. See 
Antidumping or Countervailing Duty Order, Finding, or Suspended 
Investigation; Opportunity To Request Administrative Review, 73 FR 
44966 (August 1, 2008). By August 31, 2008, the Department received 
review requests for 20 companies from Petitioners \2\ and certain 
individual companies. In addition, pursuant to 19 CFR 351.214(c), the 
Department also received new shipper review requests from SAMEFICO and 
Cadovimex II on August 8, 2008, and, August 24, 2008, respectively.
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    \2\ 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 
(``Petitioners'').
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    On September 30, 2008, the Department initiated an antidumping

[[Page 45806]]

duty administrative review on frozen fish fillets from Vietnam covering 
20 companies. See Initiation of Antidumping and Countervailing Duty 
Administrative Reviews and Requests for Revocation in Part (``5th AR 
Initiation''), 73 FR 56795 (September 30, 2008).\3\
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    \3\ We note that the initiation notice contained 20 companies. 
However, two of those companies (Vinh Hoan Co., Ltd. and Vinh Hoan 
Corporation) are the same company, existing with the former name 
prior to the POR and with the latter name during and after the POR.
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    On October 1, 2008, the Department initiated the new shipper 
reviews for SAMEFICO and Cadovimex II. See Certain Frozen Fish Fillets 
from the Socialist Republic of Vietnam: Initiation of New Shipper 
Reviews, 73 FR 57058 (October 1, 2008).
    On October 29, 2008, the Department issued a letter to all 
interested parties informing them of its decision to select QVD and 
Vinh Hoan, the two largest exporters of subject merchandise during the 
POR, as mandatory respondents based on Customs and Border Protection 
(``CBP'') import data for the fifth administrative review. See 
Memorandum to the File from Alexis Polovina, Case Analyst, through Alex 
Villanueva, Program Manager, Antidumping Duty Administrative Review of 
Frozen Fish Fillets from the Socialist Republic of Vietnam: Selection 
of Respondents for Individual Review (``Respondent Selection Memo''), 
dated October 29, 2008.
    Between December 4, 2009, and June 23, 2009, QVD submitted 
responses to the original sections A, C, and D questionnaires and 
supplemental sections A, C, and D questionnaires. Between November 24, 
2008, and June 10, 2009, Vinh Hoan submitted responses to the original 
sections A, C, and D questionnaires and supplemental sections A, C, and 
D questionnaires.
    In the new shipper reviews, Cadovimex submitted responses to 
questionnaires between November 4, 2008, and July 15, 2009. SAMEFICO 
submitted responses to questionnaires between December 31, 2008, and 
March 31, 2009.
    On March 20, 2009, the Department aligned the antidumping duty new 
shipper and administrative reviews. On April 23, 2009, the Department 
extended the deadline for the preliminary results of this review by 120 
days, to August 31, 2009. See Certain Frozen Fish Fillets from the 
Socialist Republic of Vietnam: Extension of Time Limit for Preliminary 
Results of the Fifth Antidumping Duty Administrative Review (``Prelim 
Extension''), 74 FR 18549 (April 23, 2009).
    On April 30, 2009, the Department rescinded the administrative 
review with respect to 13 companies because all requesting parties for 
those companies withdrew their requests for review in a timely manner. 
See Certain Frozen Fish Fillets From the Socialist Republic of Vietnam: 
Notice of Partial Rescission of the Fifth Antidumping Duty 
Administrative Review, 74 FR 19933 (April 30, 2009) (``5th AR Partial 
Rescission'').\4\ Therefore, seven companies remain in this 
administrative review: East Sea Seafoods Joint Venture Co., Ltd. 
(``East Sea''), the QVD single entity, representing three affiliated 
and collapsed companies, An Giang Fisheries Import and Export Joint 
Stock Company (``Agifish'' or ``AnGiang Fisheries Import and Export''), 
Vinh Hoan Corporation, and Vinh Hoan Company, Ltd.
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    \4\ Pursuant to 5th AR Partial Rescision, the Department 
rescinded on the 13 following companies: An Xuyen Co., Ltd.; Asia 
Commerce Fisheries Joint Stock Company (aka Acomfish JSC); Ben Tre 
Forestry Aquaproduct Import-Export Company (aka FAQUIMEX); Binh An 
Seafood Joint Stock Co.; Hiep Thanh Seafood Joint Stock Co.; Hung 
Vuong Corporation; Nam Viet Company Limited (aka NAVICO); Phuong Nam 
Co., Ltd.; Da Nang Seaproducts Import-Export Corporation (aka Da 
Nang or Seaprodex Danang); Southern Fishery Industries Company, Ltd. 
(aka South Vina); Thien Ma Seafood Co., Ltd.; Vinh Quang Fisheries 
Corporation; and Anvifish Co., Ltd.
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QVD's Revocation Request

    On August 29, 2008, in QVD's request for an administrative review, 
QVD requested that the antidumping order be revoked for QVD, pursuant 
to section 351.222(b)(2) of the Department's regulations. Section 
351.222(b)(2) permits, in relevant part, the Department to revoke an 
order in part with regard to a particular company if that company has 
not sold the subject merchandise at less than NV for a period of at 
least three consecutive years. QVD participated in the second, third, 
and fourth administrative reviews. QVD received a weighted- average 
margin of 0.0 percent in the second and third administrative reviews, 
but received a weighted-average margin of 0.52 percent in the fourth 
administrative review. Because QVD sold merchandise at less than NV 
during the fourth administrative review, it does not qualify for 
revocation under the Department's regulations.

Vietnam-Wide Entity

    As discussed above, in this administrative review we limited the 
selection of respondents using CBP import data. See Respondent 
Selection Memo at 2. In this case, we made available to the companies 
who were not selected, the separate rates application and 
certification, which were put on the Department's Web site. See 5th AR 
Initiation, dated September 30, 2008. Those companies which did not 
apply for separate rates will continue to be part of the Vietnam-wide 
entity. Because the Department determines preliminarily that there were 
exports of merchandise under review from Vietnam producers/exporters 
that did not demonstrate their eligibility for separate-rate status, 
the Vietnam-wide entity is now under review.

Separate Rates

    A designation as a non-market economy (``NME'') remains in effect 
until it is revoked by the Department. See section 771(18)(C) of the 
Tariff Act of 1930, as amended (``the Act''). Accordingly, there is a 
rebuttable presumption that all companies within Vietnam 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.
    Although the Department has previously assigned a separate rate to 
all of the companies eligible for a separate rate in the instant 
proceeding, it is the Department's policy to evaluate separate rates 
questionnaire responses each time a respondent makes a separate rates 
claim, regardless of whether the respondent received a separate rate in 
the past. See Manganese Metal from the People's Republic of China, 
Final

[[Page 45807]]

Results and Partial Rescission of Antidumping Duty Administrative 
Review, 63 FR 12440 (March 13, 1998).
    In this review, Agifish, Vinh Hoan, QVD, and East Sea \5\ submitted 
complete separate rates certifications and applications. SAMEFICO and 
Cadovimex II provided separate rate information in their questionnaire 
responses. The evidence submitted by these companies includes 
government laws and regulations on corporate ownership, business 
licenses, and narrative information regarding the companies' operations 
and selection of management. The evidence provided by these companies 
support a finding of a de jure absence of government control over their 
export activities, 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.
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    \5\ East Sea addressed the separate rates section of the 
Department's questionnaire in its November 25, 2008, submission as 
the certification it had submitted was no longer valid given that 
there had been a change in ownership and in name.
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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 this review, Agifish, Vinh Hoan, QVD, SAMEFICO, Cadovimex II, 
and East Sea submitted evidence indicating an absence of de facto 
government control over their export activities. Specifically, this 
evidence indicates that: (1) Each company sets its own export prices 
independent of the government and without the approval of a government 
authority; (2) each company retains the proceeds from its sales and 
makes independent decisions regarding the disposition of profits or 
financing of losses; (3) each company has a general manager, branch 
manager or division manager with the authority to negotiate and bind 
the company in an agreement; (4) the general managers are selected by 
the board of directors or company employees, and the general managers 
appoint the deputy managers and the manager of each department; and (5) 
there is no restriction on any of the companies' use of export 
revenues. Therefore, the Department preliminarily finds that Agifish, 
Vinh Hoan, QVD, and East Sea have established prima facie that they 
qualify for separate rates under the criteria established by Silicon 
Carbide and Sparklers.

Rate for Non-Selected Companies

    In this review there are two companies that were not selected for 
individual examination, East Sea and Agifish. The statute and the 
Department's regulations do not address the establishment of a rate to 
be applied to individual companies not selected for examination where 
the Department limited its examination in an administrative review 
pursuant to section 777A(c)(2) of the Act. 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 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 entirely on facts available. Accordingly, 
the Department's practice in this regard, in reviews involving limited 
respondent selection based on exporters accounting for the largest 
volumes of trade, has been to average the rates for the selected 
companies, excluding zero and de minimis rates and rates based entirely 
on facts available. See Certain Frozen Warmwater Shrimp From the 
Socialist Republic of Vietnam: Final Results and Final Partial 
Rescission of Antidumping Duty Administrative Review, 73 FR 52273, 
52275 (September 9, 2008) and accompanying Issues and Decision 
Memorandum at Comment 6 (``Shrimp from Vietnam I & D''). Section 
735(c)(5)(B) of the Act also provides that, where all margins are zero, 
de minimis, or based entirely on facts available, we may use ``any 
reasonable method'' for assigning the rate to non-selected respondents, 
including ``averaging the estimated weighted average dumping margins 
determined for the exporters and producers individually investigated.''
    In this case, the rates for both individually examined respondents 
are de minimis and accordingly, the Department will determine a 
reasonable method for assigning a rate to East Sea and Agifish. The 
Department has available in administrative reviews information that 
would not be available in an investigation, namely rates from prior 
administrative and new shipper reviews. Accordingly, since the 
determination in the investigation in this proceeding, the Department 
has determined that in cases where we have found dumping margins in 
previous segments of a proceeding, a reasonable method for determining 
the rate for non-selected companies is to use the most recent rate 
calculated for the non-selected company in question unless we 
calculated in a more recent review a rate for any company that was not 
zero, de minimis or based entirely on facts available. See Shrimp from 
Vietnam I & D at Comment 6; Ball Bearings and Parts Thereof from 
France, Germany, Italy, Japan, and the United Kingdom: Final Results of 
Antidumping Duty Administrative Reviews and Rescission of Review in 
Part, 73 FR 52823, 52824 (September 11, 2008) and accompanying Issues 
and Decision Memorandum at Comment 6; Certain Fish Fillets from the 
Socialist Republic of Vietnam: Notice of Preliminary Results of the New 
Shipper Review and Fourth Antidumping Duty Administrative Review and 
Partial Rescission of the Fourth Administrative Review, 73 FR 52015 
(September 8, 2008) (changed in final results as final calculated rate 
for mandatory respondent was above de minimis, which remained unchanged 
in the amended final results); see also Certain Polyester Staple Fiber 
From the People's Republic of China: Notice of Preliminary Results of 
the Antidumping Duty Administrative Review and Extension of Time Limits 
for the Final Results, 74 FR 32125 (July 7, 2009). Agifish recently 
received an assigned non-de minimis per-unit rate of $0.02 per kilogram 
in an antidumping duty new shipper and administrative review.\6\ See 
Notice of Amended Final Results of Antidumping Duty Administrative 
Review: Certain Frozen Fish Fillets from Vietnam (``4th AR Final''), 74 
FR 17816 (April 17, 2009). We have assigned a non-selected separate 
rate of $0.02 per kilogram for Agifish and East Sea for the purposes of 
these preliminary results, as it is the assigned rate from the most 
recently completed segment of the proceeding that is above de minimis 
and not based on adverse facts available (``AFA''). The $0.02 per 
kilogram is a non-de minimis per unit rate. For the Vietnam-wide 
entity, we have assigned the entity's current rate and only rate ever 
determined for the entity in this proceeding, which is $2.11 per

[[Page 45808]]

kilogram, which is a non-de minimis per-unit rate.
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    \6\ The rate assigned for Agifish was, in ad valorem terms, 
above de minimis.
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Verification

    Pursuant to 19 CFR 351.307(b)(iv), we conducted verification of the 
sales and factors of production (``FOP'') for SAMEFICO between April 
13-15, 2009, in Tra Vinh City Vietnam. See Memorandum to the File from 
Alexis Polovina and Timothy Lord, Case Analysts through Alex 
Villanueva, Program Manager, Verification of the Sales and Processing 
Response of Saigon-Mekong Fishery Co., Ltd. (``SAMEFICO'') in the 
Antidumping New Shipper Review of Certain Frozen Fish Fillets from the 
Socialist Republic of Vietnam (``Vietnam''), dated June 30, 2009 
(``SAMEFICO Verification Report''). We conducted a verification of the 
sales and FOP for Vinh Hoan between June 22 and July 1, 2009 in Cao 
Lanh, Dong Thap Province and in Ho Chi Minh City Vietnam. See 
Memorandum to the File from Javier Barrientos and Alan Ray, Senior and 
Case Analysts, through Alex Villanueva, Program Manager, Verification 
of the Sales and Processing Response of Vinh Hoan Co., Ltd/Corp. 
(``Vinh Hoan'') in the Antidumping Duty New Shipper and Administrative 
Reviews of Certain Frozen Fish Fillets from the Socialist Republic of 
Vietnam (``Vietnam''), dated August 28, 2009 (``Vinh Hoan Verification 
Report'').

Scope of the Order

    The product covered by this Order is frozen fish fillets, including 
regular, shank, and strip fillets and portions thereof, whether or not 
breaded or marinated, of the species Pangasius Bocourti, Pangasius 
Hypophthalmus (also known as Pangasius Pangasius), and Pangasius 
Micronemus. Frozen fish fillets are lengthwise cuts of whole fish. The 
fillet products covered by the scope include boneless fillets with the 
belly flap intact (``regular'' fillets), boneless fillets with the 
belly flap removed (``shank'' fillets), boneless shank fillets cut into 
strips (``fillet strips/finger''), which include fillets cut into 
strips, chunks, blocks, skewers, or any other shape. Specifically 
excluded from the scope are frozen whole fish (whether or not dressed), 
frozen steaks, and frozen belly-flap nuggets. Frozen whole dressed fish 
are deheaded, skinned, and eviscerated. Steaks are bone-in, cross-
section cuts of dressed fish. Nuggets are the belly-flaps. The subject 
merchandise will be hereinafter referred to as frozen ``basa'' and 
``tra'' fillets, which are the Vietnamese common names for these 
species of fish. These products are classifiable under tariff article 
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'').\7\ This 
Order covers all frozen fish fillets meeting the above specification, 
regardless of tariff classification. Although the HTSUS subheading is 
provided for convenience and customs purposes, our written description 
of the scope of the Order is dispositive.
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    \7\ 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 economy (``NME'') country. In 
accordance with section 771(18)(C)(i) of the Act (``the Act''), any 
determination that a foreign country is an NME country shall remain in 
effect until revoked by the administering authority. See Notice of 
Final Results of Administrative Review: Certain Frozen Fish Fillets 
from the Socialist Republic of Vietnam, 73 FR 15479 (March 17, 2008) 
and accompanying Issues and Decision Memorandum (``3rd AR Final 
Results''). None of the parties to this proceeding have contested such 
treatment. Accordingly, we calculated NV in accordance with section 
773(c) of the Act, which applies to NME countries.

Surrogate Country and Surrogate Values

    On April 2, 2009, the Department sent interested parties a letter 
setting a deadline to submit comments on surrogate country selection 
and information pertaining to valuing factors of production (``FOP''). 
QVD, Cadovimex II, SAMEFICO, and Petitioners submitted surrogate 
country comments and surrogate value data on April 20, 2009. On April 
30, 2009, Respondents submitted a rebuttal to Petitioners' comments. On 
August 10, 2009, Respondents reiterated their April 20 and April 30, 
2009, comments.

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 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 market economy countries that 
are: (1) At a level of economic development comparable to that of the 
NME country; and (2) significant producers of comparable merchandise. 
The sources of the surrogate factor values are discussed under the 
``Normal Value'' section below and in the Memorandum to the File 
through Alex Villanueva, Program Manager, Office 9, from Alexis 
Polovina, Case Analyst, dated August 27, 2009.
    The Department determined that Bangladesh, Pakistan, India, 
Indonesia, the Philippines, and Sri Lanka are countries comparable to 
Vietnam in terms of economic development.\8\ Once it has identified 
economically comparable countries, the Department's practice is to 
select an appropriate surrogate country from the list based on the 
availability and reliability of data from the countries. See Department 
Policy Bulletin No. 04.1: Non-Market Economy Surrogate Country 
Selection Process (March 1, 2004).
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    \8\ See Memorandum from Kelly Parkhill, Acting Director of 
Office of Policy, to Alex Villanueva, Program Manager, China/NME 
Group, Office 9: Antidumping Duty Administrative Review of Certain 
Frozen Fish Fillets from the Socialist Republic of Vietnam 
(Vietnam): Request for a List of Surrogate Countries (``Surrogate 
Country List'') (January 15, 2009).
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    In this case, we have found that Bangladesh is a significant 
producer of comparable merchandise. We find Bangladesh to be a reliable 
source for surrogate values because Bangladesh is at a similar level of 
economic development pursuant to section 773(c)(4) of the Act, is a 
significant producer of comparable merchandise, and has more complete 
publicly available and reliable data. Thus, we have selected Bangladesh 
as the primary surrogate country for this administrative review. 
However, in certain instances where Bangladeshi data was not available, 
we looked to see if Philippine data was available, and if not, we used 
data from Indian or Indonesian sources. For a more complete explanation 
of the surrogate country selection, see Memorandum to the File, through 
James C. Doyle, Office 9 Director, through Alex Villanueva, Office 9 
Program Manager, from Timothy Lord, Office 9 Case Analyst, dated August 
28, 2009, Fifth Antidumping Duty Administrative Review and Aligned 
Fourth New Shipper Review of Certain Frozen Fish Fillets from the 
Socialist Republic of

[[Page 45809]]

Vietnam: Selection of a Surrogate Country (``Surrogate Value Memo'').
    In accordance with 19 CFR 351.301(c)(3)(ii), for the final results 
in an antidumping administrative review, interested parties may submit 
publicly available information to value FOPs within 20 days after the 
date of publication of these preliminary results.

Affiliations

    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 of 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.''
    In the final results of the third antidumping duty administrative 
review, the Department determined that QVD Choi Moi Farming Cooperative 
(``QVD Choi Moi'') would no longer be collapsed with QVD, QVD DT, and 
Thuan Hung, pursuat to sections 771(33)(A), (B), (E), (F), and (G) of 
the Act and 19 CFR 351.401(f). See Memorandum to David M. Spooner, 
Assistant Secretary for Import Administration, from Stephen J. Claeys, 
Deputy Assistant Secretary: Issues and Decision Memorandum for the 
Final Results of the Administrative Review: Certain Frozen Fish Fillets 
from the Socialist Republic of Vietnam (``Vietnam'') (``3rd I & D'') 
(March 17, 2008). The Department also determined that QVD USA is 
affiliated with QVD, QVD Dong Thap, and Thuan Hung pursuant to sections 
771(33)(A), (B), (E), (F), and (G) of the Act. Therefore, the 
Department determined to calculate a constructed export price (``CEP'') 
through QVD USA to its first unaffiliated U.S. customer. See 3rd I & D 
at Comment 5. The Department also determined that Beaver Street 
Fisheries (``BSF'') and QVD USA were not affiliated. See Id.
    In QVD's Section A Questionnaire Response, it stated that during 
the POR ``the QVD shareholders sold the land and all shareholdings in 
QVD Choi Moi on May 4, 2008.'' See QVD's December 4, 2008, Section A 
Questionnaire at 3. Therefore, based on the record evidence in this 
review we find find QVD Choi Moi is no longer affiliated with QVD 
entities as of May 4, 2008.
    For these preliminary results, based on the information on the 
record of this proceeding, the Department continues to find that QVD, 
QVD DT, and Thuan Hung should be collapsed and treated as a single 
entity. See 3rd I & D at Comment 5. Similarly, for these preliminary 
results, based on the information on the record of this proceeding, the 
Department continues to find that QVD and QVD USA are affiliated 
pursuant to sections 771(33)(A), (B), (E), (F), and (G) of the Act. For 
these preliminary results, we also continue to find that BSF and QVD 
USA are not affiliated.
    Based on evidence submitted by Vinh Hoan and explained at 
verification, we preliminarily find that Vinh Hoan is affiliated Vinh 
Hoan 1 Feed Joint Stock Company (``Vinh Hoan Feed'') and Van Duc, 
pursuant to section 771(33) of the Act. Because much of the facts 
underlying this determination are business proprietary, for a detailed 
discussion of affiliations, please see Vinh Hoan Verification Report at 
pages 4-8 and 15-18. In addition, based on evidence found at 
verification of Vinh Hoan, we preliminarily find that Vinh Hoan, and 
Van Duc, but not Vinh Hoan Feed, should be treated as a single entity 
for purposes of this new shipper review. See 19 CFR 351.401(f)(1).
    Also based on evidence submitted by Vinh Hoan and explained at 
verification, we preliminarily find that Vinh Hoan is affiliated Vinh 
Hoan USA, pursuant to section 771(33) of the Act. Id.
    Based on evidence submitted by Cadovimex II in their questionnaire 
responses, we preliminarily find that Cadovimex II is affiliated with 
Oceanwide Seafood, LLC (``Oceanwide''), pursuant to section 771(33) of 
the Act. Id.

Fair Value Comparisons

    To determine whether sales of the subject merchandise made by QVD, 
Vinh Hoan, SAMEFICO or Cadovimex II to the United States were at prices 
below NV, we compared each company's export price (``EP'') or CEP, 
where appropriate, to NV, as described below.

U.S. Price

    For SAMEFICO's and Vinh Hoan's 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 CEP 
was not otherwise warranted by the facts on the record. We calculated 
EP based on the Free-on-board foreign port price to the first 
unaffiliated purchaser in the United States. For the EP sales, we also 
deducted foreign inland freight, foreign cold storage, and 
international ocean freight from the starting price (or gross unit 
price), in accordance with section 772(c) of the Act.
    In accordance with section 772(b) of the Act, we used the CEP 
methodology when the first sale to an unaffiliated purchaser occurred 
after importation of the merchandise into the United States. In this 
instance, we calculated CEP for all of QVD's, Cadovimex II's, and Vinh 
Hoan's U.S. sales through their respective U.S. affiliates, QVD USA, 
Oceanwide, and Vinh Hoan USA to unaffiliated customers.
    For QVD's, Cadovimex II's, and Vinh Hoan's CEP sales, we made 
adjustments to the gross unit price for billing adjustments, rebates, 
foreign inland freight, international freight, foreign cold storage, 
U.S. marine insurance, U.S. inland freight, U.S. warehousing, U.S. 
inland insurance, other U.S. transportation expenses, and U.S. customs 
duties. In accordance with section 772(d)(1) of the Act, we also 
deducted those selling expenses associated with economic activities 
occurring in the United States, including commissions, credit expenses, 
advertising expenses, indirect selling expenses, inventory carrying 
costs, and U.S. re-packing costs. We also made an adjustment for profit 
in accordance with section 772(d)(3) of the Act.
    Where movement expenses were provided by NME-service providers or 
paid for in NME currency, we valued these services using either 
Bangladeshi or Indian surrogate values. See Surrogate Value Memo. Where 
applicable, we used the actual reported expense for those movement 
expenses provided by ME suppliers and paid for in ME currency.

Bona Fide New Shipper Analysis

    Consistent with the Department's practice, we investigated the bona 
fide nature of the sales made by SAMEFICO and Cadovimex II for the new 
shipper review. In evaluating whether a sale is bona fide, the 
Department considers,

[[Page 45810]]

inter alia, such factors as: (1) The timing of the sale; (2) the price 
and quantity; (3) the expenses arising from the transaction; (4) 
whether the goods were resold at a profit; and (5) whether the 
transaction was made on an arms-length basis. We preliminarily find 
that the new shipper sales made by SAMEFICO and Cadovimex II are bona 
fide transactions. See Memo to the File Through Alex Villanueva, 
Program Manager, Office 9 from Alexis Polovina, Case Analyst: 
Antidumping Duty New Shipper Review of Certain Frozen Fish Fillets from 
the Socialist Republic of Vietnam: Bona Fide Nature of the Sale Under 
Review for Saigon-Mekong Fishery Co., Ltd. and Memo to the File Through 
Alex Villanueva, Program Manager, Office 9 from Tim Lord, Case Analyst: 
Antidumping Duty New Shipper Review of Certain Frozen Fish Fillets from 
the Socialist Republic of Vietnam: Bona Fide Nature of the Sale Under 
Review for Cadovimex II Seafood Import-Export & Processing Joint Stock 
Company, dated August 27, 2009. Based on our investigation into the 
bona fide nature of the sales, the questionnaire responses submitted by 
SAMEFICO and Cadovimex, as well the companies' eligibility for a 
separate rate (see ``Separate Rates'' section above), and the 
Department's preliminary determination that SAMEFICO and Cadovimex II 
were not affiliated with any exporter or producer that had previously 
shipped subject merchandise to the United States, we preliminarily 
determine that SAMEFICO and Cadovimex II have met the requirements to 
qualify as new shippers during the POR. Therefore, for purposes of 
these preliminary results of review, we are treating SAMEFICO's and 
Cadovimex II's respective sales of subject merchandise to the United 
States as appropriate transactions for this new shipper review. We will 
continue to evaluate all aspects of SAMEFICO's and Cadovimex II's sales 
during the final results.

Normal Value

    Section 773(c)(1) of the Act provides that, in the case of an NME, 
the Department shall determine NV using an FOP methodology if the 
merchandise is exported from an NME 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. Because 
information on the record does not permit the calculation of NV using 
home-market prices, third-country prices, or constructed value and no 
party has argued otherwise, we calculated NV based on FOPs reported by 
QVD, Vinh Hoan, SAMEFICO, and Cadovimex II, pursuant to sections 
773(c)(3) and (4) of the Act and 19 CFR 351.408(c).
    As the basis for NV, QVD, Vinh Hoan, SAMEFICO, and Cadovimex II 
provided FOPs used in each of the stages for processing frozen fish 
fillets. Our general policy, consistent with section 773(c)(1)(B) of 
the Act, is to value the FOPs that a respondent uses to produce the 
subject merchandise.
    To calculate NV, we valued QVD's, Vinh Hoan's, SAMEFICO's, and 
Cadovimex II's reported per-unit factor quantities using publicly 
available Bangladeshi, Philippine, Indian, and Indonesian surrogate 
values. Bangladesh was our first surrogate country source from which to 
obtain data to value inputs, and when data was not available from 
there, we used Philippine, Indian, or Indonesian sources. In selecting 
surrogate values, we considered the quality, specificity, and 
contemporaneity of the available values. As appropriate, we adjusted 
the value of material inputs to account for delivery costs. 
Specifically, we added surrogate freight costs to surrogate values 
using the reported distances from the Vietnam port to the Vietnam 
factory or from the domestic supplier to the factory, where 
appropriate. This adjustment is in accordance with the decision of the 
CAFC in Sigma Corp. v. United States, 117 F.3d 1401, 1407-1408 (Fed. 
Cir. 1997).
    For those values not contemporaneous with the POR, we adjusted for 
inflation using data published in the International Monetary Fund's 
International Financial Statistics. Import data from South Korea, 
Thailand and Indonesia were excluded from the surrogate country import 
data due to generally available export subsidies. See China Nat'l Mach. 
Import & Export Corp. v. United States, CIT 01-1114, 293 F. Supp. 2d 
1334 (CIT 2003), aff'd 104 Fed. Appx. 183 (Fed. Cir. 2004), and Certain 
Cut-to-Length Carbon Steel Plate from Romania: Notice of Final Results 
and Final Partial Rescission of Antidumping Duty Administrative Review, 
70 FR 12651, and accompanying issues and Decision Memorandum at Comment 
4 (March 15, 2005). Additionally, we excluded prices from NME countries 
and imports that were labeled as originating from an ``unspecified'' 
Asian country. The Department excluded these imports because it could 
not ascertain whether they were from either an NME country or a country 
with general export subsidies. We converted the surrogate values to 
U.S. dollars as appropriate, using the official exchange rate recorded 
on the dates of sale of subject merchandise in this case, obtained from 
http://www.ia.ita.doc.gov/exchange/index.html. For further detail, see 
Surrogate Values Memo.

Preliminary Results of the Review

    As a result of our review, we preliminarily find that the following 
margins exist for the period August 1, 2007, through July 31, 2008:
---------------------------------------------------------------------------

    \9\ This rate is applicable to the QVD Single Entity which 
includes QVD, QVD DT, and Thuan Hung.

                Certain Frozen Fish Fillets From Vietnam
------------------------------------------------------------------------
                                                            Weighted-
                                                         average margin
                 Manufacturer/exporter                    (dollars  per
                                                            kilogram)
------------------------------------------------------------------------
QVD \9\...............................................              0.00
Vinh Hoan.............................................              0.00
Agifish...............................................              0.02
SAMEFICO..............................................              0.00
Cadovimex II..........................................              0.00
East Sea..............................................              0.02
Vietnam-wide Entity...................................              2.11
------------------------------------------------------------------------

Public Comment

    The Department will disclose to parties of this proceeding the 
calculations performed in reaching the preliminary results within ten 
days of the date of announcement of the preliminary results. An 
interested party may request a hearing within 30 days of publication of 
the preliminary results. See 19 CFR 351.310(c). Interested parties may 
submit written comments (case briefs) within 30 days of publication of 
the preliminary results and rebuttal comments (rebuttal briefs), which 
must be limited to issues raised in the case briefs, within five days 
after the time limit for filing case briefs. See 19 CFR 
351.309(c)(1)(ii) and 19 CFR 351.309(d). Parties who submit arguments 
are requested to submit with the argument: (1) A statement of the 
issue; (2) a brief summary of the argument; and (3) a table of 
authorities. Further, the Department requests that parties submitting 
written comments provide the Department with a diskette containing the 
public version of those comments. Unless the deadline is extended 
pursuant to section 751(a)(3)(A) of the Act, the Department will issue 
the final results of this

[[Page 45811]]

administrative review, including the results of our analysis of the 
issues raised by the parties in their comments, within 120 days of 
publication of the preliminary results. The assessment of antidumping 
duties on entries of merchandise covered by this review and future 
deposits of estimated duties shall be based on the final results of 
this review.

Assessment Rates

    Upon completion of this administrative review, pursuant to 19 CFR 
351.212(b), the Department will calculate an assessment rate on all 
appropriate entries. For the mandatory respondents, QVD and Vinh Hoan, 
and new shippers, SAMEFICO and Cadovimex II, we will calculate 
importer-specific duty assessment rates on a per-unit basis.\10\ Where 
the assessment rate is de minimis, we will instruct CBP to assess no 
duties on all entries of subject merchandise by that importer. We will 
instruct CBP to liquidate entries containing merchandise from the PRC-
wide entity at the PRC-wide rate we determine in the final results of 
review. We will issue assessment instructions to CBP 15 days after the 
date of publication of the final results of review.
---------------------------------------------------------------------------

    \10\ We divided the total dumping margins (calculated as the 
difference between NV and EP or CEP) 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.
---------------------------------------------------------------------------

Cash Deposit Requirements

    The following cash deposit requirements will be effective upon 
publication of the final results of this administrative review for all 
shipments of the subject merchandise entered, or withdrawn from 
warehouse, for consumption on or after the publication date, as 
provided for by section 751(a)(2)(C) of the Act: (1) For the exporters 
listed above, except for Cadovimex II and SAMEFICO, the cash deposit 
rate will be that established in the final results of this review 
(except, if the rate is zero or de minimis, the cash deposit will be 
zero); (2) for previously investigated or reviewed Vietnam and non-
Vietnam 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 Vietnam exporters of subject 
merchandise which have not been found to be entitled to a separate 
rate, the cash deposit rate will be the Vietnam-wide rate of $2.11 per 
kilogram; and (4) for all non-Vietnam exporters of subject merchandise 
which have not received their own rate, the cash deposit rate will be 
the rate applicable to the Vietnam exporters that supplied that non-
Vietnam exporter. These deposit requirements, when imposed, shall 
remain in effect until further notice.
    The following cash deposit requirements will be effective upon 
publication of the final results of this review for all shipments of 
subject merchandise from new shippers Cadovimex II or SAMEFICO 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 Cadovimex II or 
produced and exported by SAMEFICO, the cash deposit rate will be zero; 
(2) for subject merchandise exported by Cadovimex II or SAMEFICO but 
not manufactured by Cadovimex II or SAMEFICO, the cash deposit rate 
will continue to be the Vietnam-wide rate (i.e., $2.11 per kilogram); 
and (3) for subject merchandise manufactured by Cadovimex II or 
SAMEFICO, but exported by any other party, the cash deposit rate will 
be the rate applicable to the exporter. 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-exporter combinations. 
These cash deposit requirements, when imposed, shall remain in effect 
until further notice.

Notification to Interested Parties

    This notice serves as a preliminary reminder to importers of their 
responsibility under 19 CFR 351.402(f)(2) to file a certificate 
regarding the reimbursement of antidumping duties prior to liquidation 
of the relevant entries during this POR. Failure to comply with this 
requirement could result in the Secretary's presumption that 
reimbursement of antidumping duties occurred and the subsequent 
assessment of double antidumping duties.
    We are issuing and publishing this determination in accordance with 
sections 751(a)(1) and 777(i)(1) of the Act.

    Dated: August 28, 2009.
Ronald K. Lorentzen,
Acting Assistant Secretary for Import Administration.
[FR Doc. E9-21429 Filed 9-3-09; 8:45 am]
BILLING CODE 3510-DS-P