[Federal Register Volume 77, Number 50 (Wednesday, March 14, 2012)]
[Notices]
[Pages 15039-15042]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-6201]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-552-801]


Certain Frozen Fish Fillets From the Socialist Republic of 
Vietnam: Final Results and Partial Rescission of the Seventh 
Antidumping Duty Administrative Review

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.
SUMMARY: On September 9, 2011, the Department of Commerce 
(``Department'') published the Preliminary Results of the seventh 
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 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, 2009, through July 31, 2010.
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    \1\ See Certain Frozen Fish Fillets From the Socialist Republic 
of Vietnam: Preliminary Results and Partial Rescission of the 
Seventh Antidumping Duty Administrative Review, 76 FR 55872 
(September 9, 2011) (``Preliminary Results'').

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DATES: Effective Date: March 14, 2012.

FOR FURTHER INFORMATION CONTACT: Alexis Polovina 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-
3927 or (202) 482-2243, respectively.

Case History

    As noted above, on September 9, 2011, the Department published the 
Preliminary Results of this administrative review. We extended the 
deadlines for submission of surrogate value (``SV'') comments and case 
briefs multiple times based on requests from interested parties. On 
December 29, 2011, the Department fully extended the time limit for 
completion of the final results of this administrative review.\2\ On 
November 15, 2011, and January 6, 2012, parties submitted SV comments 
and SV rebuttal comments, respectively. On January 13, 2012, and 
January 27, 2012, parties submitted case and rebuttal briefs, 
respectively.
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    \2\ See Certain Frozen Fish Fillets From the Socialist Republic 
of Vietnam: Extension of Time Limit for the Final Results of the 
Seventh Antidumping Duty Administrative Review, 76 FR 81913 
(December 29, 2010).
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    On December 30, 2011, Petitioners \3\ submitted comments on Vinh 
Hoan Corporation's (``Vinh Hoan'') factors of production (``FOP'') 
methodology. On January 9, 2012, the Department placed certain factual 
information from the sixth administrative review regarding Vinh Hoan on 
the record, and also issued a supplemental questionnaire to Vinh Hoan. 
On January 18, 2012, Vinh Hoan responded to the supplemental 
questionnaire. On February 1 and February 6, 2012, parties submitted 
case and rebuttal briefs, respectively, pertaining to Vinh Hoan's FOP 
methodology. On December 29, 2011, January 24, 2012, and February 21, 
2012, Petitioners and/or their counsel met with officials from the 
Department. On February 16, 2012, counsel for certain Respondents \4\ 
and VASEP,\5\ an interested party, met with officials from the 
Department. As a result of our analysis, we have made changes to the 
Preliminary Results.
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    \3\ This includes: 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, and Simmons Farm Raised Catfish, Inc. (``Petitioners'')
    \4\ These companies include: Vinh Hoan; Vinh Quang Fisheries 
Corporation (``Vinh Quang''); QVD Food Company Ltd. (``QVD'') (the 
Department is treating QVD, QVD Dong Thap Food Co., Ltd., and Thuan 
Hung Co., Ltd. as a single entity in this review); and certain 
separate rate companies.
    \5\ Vietnam Association of Seafood Exports and Producers.
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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 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 0304.29.6033, 0304.62.0020, 0305.59.0000, 0305.59.4000, 
1604.19.2000, 1604.19.2100, 1604.19.3000, 1604.19.3100, 1604.19.4000, 
1604.19.4100, 1604.19.5000, 1604.19.5100, 1604.19.6100, 1604.19.8100 
(Frozen Fish Fillets of the species Pangasius including basa and tra) 
of the Harmonized Tariff Schedule of the United States (``HTSUS'').\6\ 
The order

[[Page 15040]]

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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    \6\ 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. On March 2, 
2011, the Department added two HTSUS numbers at the request of U.S. 
Customs and Border Protection (``CBP''): 1604.19.2000 and 1604 
19.3000. On January 30, 2012, the Department added eight HTSUS 
numbers at the request of U.S. CBP: 0304.62.0020, 0305.59.0000, 
1604.19.2100, 1604.19.3100, 1604.19.4100, 1604.19.5100, 
1604.19.6100, 1604.19.8100.
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Analysis of Comments Received

    All issues raised in the case and rebuttal briefs by parties are 
addressed in the ``Certain Frozen Fish Fillets from the Socialist 
Republic of Vietnam: Issues and Decision Memorandum for the Final 
Results of the Seventh Antidumping Duty Administrative Review,'' dated 
concurrently with this notice (``Issues & Decision Memo''), and which 
is hereby adopted by this notice. A list of the issues which parties 
raised is attached to this notice as an Appendix. Parties can find a 
complete discussion of all issues raised in this review and the 
corresponding recommendation in this public memorandum which is on file 
electronically via Import Administration's Antidumping and 
Countervailing Duty Centralized Electronic Services System (``IA 
ACCESS''). Access to IA ACCESS is available in the Central Records Unit 
(``CRU'') of the main Commerce Building, Room 7046. In addition, a 
complete version of the Issues and Decision Memorandum is accessible on 
the Web at http://trade.gov/frn. The paper copy and electronic versions 
of the Issues and Decision Memorandum are identical in content.

Final Partial Rescission

    In the Preliminary Results, the Department preliminarily rescinded 
the review with respect to four companies: (1) IDI; (2) CL-Fish; (3) 
THIMACO; and (4) NTSF.\7\ 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.\8\ The Department did not receive any 
comments regarding the preliminary rescission for any company claiming 
no shipments. Therefore, we are rescinding the administrative review 
with respect to these four companies.
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    \7\ International Development & Investment Corporation 
(``IDI''); Cuu Long Fish Joint Stock Company (``CL Fish''); Thien Ma 
Seafood Co., Ltd. (``THIMACO''); and NTSF Seafoods Joint Stock 
Company (``NTSF'').
    \8\ See Preliminary Results.
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Changes Since the Preliminary Results

    Based on a review of the record and comments received from 
interested parties regarding our Preliminary Results, we have made 
certain revisions to the margin calculation for Vinh Hoan, and QVD. For 
the reasons explained in the I&D Memo at Comment 1, we have changed our 
primary surrogate country selection from Indonesia to Bangladesh. For 
all other changes to the calculations of Vinh Hoan and QVD, see the I&D 
Memo and company-specific analysis memorandum. For changes to the SVs, 
see the I&D Memo and ``Memorandum to the File, through Matthew Renkey, 
Acting Program Manager, AC/CVD Operations, Office 9, from Javier 
Barrientos, Senior Case Analyst, and Alexis Polovina, Case Analyst, AD/
CVD Operations, Office 9, Seventh Antidumping Duty Administrative 
Review of Certain Frozen Fish Fillets from the Socialist Republic of 
Vietnam: Surrogate Values for the Final Results,'' dated March 7, 2012.

Non-Market Economy Country Status

    In every case conducted by the Department involving Vietnam, 
Vietnam has been treated as an 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.\9\ 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.
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    \9\ 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'').
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Separate Rates

    In proceedings involving NME countries, the Department holds 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 policy to assign all 
exporters of subject merchandise in an NME country this single rate 
unless an exporter can demonstrate that it is sufficiently independent 
so as to be entitled to a separate rate.\10\ In the Preliminary 
Results, we determined that in addition to the mandatory respondents, 
the Separate-Rate Applicants \11\ also met the criteria for separate-
rate status. The separate rate is determined based on the estimated 
weighted-average antidumping margins established for exporters and 
producers individually investigated, excluding zero and de minimis 
margins or margins based entirely on AFA.\12\
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    \10\ See Notice of Final Determination of Sales at Less Than 
Fair Value: Sparklers from the People's Republic of China, 56 FR 
20588 (May 6, 1991), as further developed in 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).
    \11\ These companies include: (1) Anvifish Co., Ltd.; (2) 
Anvifish JSC; (3) Acomfish; (4) Bien Dong Seafood; (5) Binh An; (6) 
CASEAMEX; (7) ESS LLC; (8) East Sea Seafoods Joint Venture Co., 
Ltd.; (9) Hiep Thanh; (10) South Vina; and (11) Vinh Quang 
(collectively, ``Separate-Rate Applicants'').
    \12\ 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.
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    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 when 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 articulates a preference 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 usual 
practice has been to average the rates for the selected companies, 
excluding zero, de minimis and rates based entirely on facts 
available.\13\ 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.''
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    \13\ See 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 16.
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    For this administrative review, the Department has calculated 
positive margins for one mandatory respondent,

[[Page 15041]]

QVD. Accordingly, consistent with our practice, for these final 
results, the Department has preliminarily established a margin for the 
Separate-Rate Applicants based on the rate calculated for one of the 
mandatory respondents, QVD. The rate established for the Separate-Rate 
Applicants is a per-unit rate of $0.03 dollars per kilogram. Entities 
receiving this rate are identified by name in the ``Preliminary Results 
of Review'' section of this notice.

Vietnam-Wide Rate and Vietnam-Wide Entity

    As noted in the Preliminary Results, because some parties for which 
a review was requested did not apply for separate rate status, the 
Vietnam-Wide entity is considered to be under review in this segment of 
the proceeding. In NME proceedings, `` `rates' may consist of a single 
dumping margin applicable to all exporters and producers.'' See 19 CFR 
351.107(d). As explained above in the ``Separate Rates'' section, all 
companies within Vietnam are considered to be subject to government 
control unless they are able to demonstrate an absence of government 
control with respect to their export activities. Such companies are 
thus assigned a single antidumping duty rate distinct from the separate 
rate(s) determined for companies that are found to be independent of 
government control with respect to their export activities. We consider 
the influence that the government has been found to have over the 
economy to warrant determining a rate for the entity that is distinct 
from the rates found for companies that have provided sufficient 
evidence to establish that they operate freely with respect to their 
export activities. See Notice of Final Antidumping Duty Determination 
of Sales at Less Than Fair Value and Affirmative Critical 
Circumstances: Certain Frozen Fish Fillets from the Socialist Republic 
of Vietnam, 68 FR 37116 (June 23, 2003). In this regard, we note that 
no party has submitted evidence of the proceeding to demonstrate that 
such government influence is no longer present or that our treatment of 
the NME entity is otherwise incorrect. Therefore, we are assigning the 
entity's current rate of $2.11 per kilogram, the rate determined for 
the Vietnam-wide entity in this proceeding. See, e.g., 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).

Final Results of the Review

    The weighted-average dumping margins for the POR are as follows:
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    \14\ This rate is applicable to the Vinh Hoan Group which 
includes Vinh Hoan, Van Duc, and VD TG.

------------------------------------------------------------------------
                                                              Weighted-
                                                               average
                                                                margin
                   Manufacturer/exporter                       (dollars
                                                                 per
                                                              kilogram)
------------------------------------------------------------------------
(1) Vinh Hoan \14\.........................................         0.00
(2) QVD....................................................         0.03
(3) Anvifish Co., Ltd......................................         0.03
(4) Anvifish JSC...........................................         0.03
(5) Acomfish...............................................         0.03
(6) Bien Dong Seafood......................................         0.03
(7) Binh An................................................         0.03
(8) CASEAMEX...............................................         0.03
(9) ESS LLC................................................         0.03
(10) East Sea Seafoods Joint Venture Co., Ltd..............         0.03
(11) Hiep Thanh............................................         0.03
(12) South Vina............................................         0.03
(13) Vinh Quang............................................         0.03
Vietnam-Wide Rate..........................................         2.11
------------------------------------------------------------------------

Assessment Rates

    Pursuant to section 751(a)(2)(A) of the Act and 19 CFR 351.212(b), 
the Department will determine, and U.S. Customs and Border Protection 
(``CBP'') shall assess, antidumping duties on all appropriate entries 
of subject merchandise in accordance with the final results of this 
review. For assessment purposes, we calculated importer (or customer)-
specific assessment rates for merchandise subject to this review. Where 
appropriate, we calculated an ad valorem rate for each importer (or 
customer) by dividing the total dumping margins for reviewed sales to 
that party by the total entered values associated with those 
transactions. For duty-assessment rates calculated on this basis, we 
will direct CBP to assess the resulting ad valorem rate against the 
entered customs values for the subject merchandise. Where appropriate, 
we calculated a per-unit rate for each importer (or customer) by 
dividing the total dumping margins for reviewed sales to that party by 
the total sales quantity associated with those transactions. For duty-
assessment rates calculated on this basis, we will direct CBP to assess 
the resulting per-unit rate against the entered quantity of the subject 
merchandise. Where an importer (or customer)-specific assessment rate 
is de minimis (i.e., less than 0.50 percent), the Department will 
instruct CBP to assess that importer (or customer's) entries of subject 
merchandise without regard to antidumping duties, in accordance with 19 
CFR 351.106(c)(2). The Department intends to issue assessment 
instructions to CBP 15 days after the date of publication of these 
final results of review.

Cash Deposit Requirements

    The following cash deposit requirements will be effective upon 
publication of the final results of this administrative review for all 
shipments of the subject merchandise from Vietnam entered, or withdrawn 
from warehouse, for consumption on or after the publication date, as 
provided by section 751(a)(2)(C) of the Act: (1) For Vinh Hoan, QVD, 
and the Separate-Rate Applicants, the cash deposit rate will be their 
respective rates established in the final results of this review, 
except if the rate is zero or de minimis no cash deposit will be 
required; (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 Vietnam-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 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, which continues 
to govern business proprietary information in this segment of the 
proceeding. Timely written notification of the return/destruction of 
APO materials or conversion to judicial

[[Page 15042]]

protective order is hereby requested. Failure to comply with the 
regulations and terms of an APO is a violation which is subject to 
sanction.
    We are issuing and publishing this administrative review and notice 
in accordance with sections 751(a)(1) and 777(i) of the Act.

     Dated: March 7, 2012.
Paul Piquado,
Assistant Secretary for Import Administration.

Appendix I--Issues & Decision Memorandum

COMMENT I: SELECTION OF SURROGATE COUNTRY
    A. Economic Comparability
    B. Significant Producer of the Comparable Merchandise
    C. Data Considerations
COMMENT II: SURROGATE VALUES
    A. Financial Ratios
    1. Selection of Surrogate Companies
    B. By-Products Offsets
    1. Fish Waste
    2. Fish Oil
    3. Fresh Broken Fillets
    4. Frozen Broken Fillets
    5. Fish Meal
    C. Farming Factors
    1. Fingerlings, Fish Feed, Nutrients, Lime
    D. Other Surrogate Values
    1. Labor
    2. Salt
    3. STPP, CO Gas, PE Bags, Cartons, Tape, Label, Plastic Sheet, 
Banding, Diesel, Coal
    4. Brokerage & Handling
COMMENT III: ZEROING

Company-Specific Issues

COMMENT IV: VINH HOAN
    A. Fish Consumption
    B. Revocation
    C. Farming Water
COMMENT V: CONSIDERATION OF VINH QUANG AS A VOLUNTARY RESPONDENT
COMMENT VI: SOUTH VINA SEPARATE RATE CERTIFICATION

[FR Doc. 2012-6201 Filed 3-13-12; 8:45 am]
BILLING CODE 3510-DS-P