[Federal Register Volume 73, Number 174 (Monday, September 8, 2008)]
[Notices]
[Pages 52015-52021]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-20755]


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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 the New Shipper Review and 
Fourth Antidumping Duty Administrative Review and Partial Rescission of 
the Fourth Administrative Review

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.
SUMMARY: The Department of Commerce (``Department'') is conducting 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'') 
and Binh An Seafood Joint Stock Co. (``Binh An'') did not sell subject 
merchandise at less than normal value (``NV'') during the period of 
review (``POR''), August 1, 2006, through July 31, 2007.

DATES: Effective Date: September 8, 2008.

FOR FURTHER INFORMATION CONTACT: Alan Ray (QVD) and Matthew Renkey

[[Page 52016]]

(Binh An), 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 and (202) 482-2312, respectively.

SUPPLEMENTARY INFORMATION:

Case History

    On August 2, 2007, 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, 72 FR 
42383 (August 2, 2007). By August 31, 2007, the Department received 
review requests for 32 companies from Petitioners \1\ and certain 
individual companies. In addition, pursuant to 19 CFR 351.214(c), the 
Department also received a new shipper review request from Binh An.
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    \1\ The Catfish Famers 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 25, 2007, the Department initiated an antidumping duty 
administrative review on frozen fish fillets from Vietnam covering 32 
companies. See Initiation of Antidumping and Countervailing Duty 
Administrative Reviews and Requests for Revocation in Part, 72 FR 54428 
(September 25, 2007). On October 9, 2007, the Department initiated the 
new shipper review for Binh An. See Notice of Initiation of Antidumping 
Duty Administrative Reviews: Certain Frozen Fish Fillets from the 
Socialist Republic of Vietnam, 72 FR 57296 (October 9, 2007).\2\ On 
March 3, 2008, the Department extended the deadline for the preliminary 
results of this review by 120 days, to September 2, 2008. See Notice of 
Extension of Time Limits for Preliminary Results of Antidumping Duty 
Administrative and Partial Rescission of Administrative Review: Certain 
Frozen Fish Fillets from Vietnam (``Extension and Partial Rescission 
Notice''), 73 FR 11391 (March 3, 2008).
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    \2\ The Department also initiated a new shipper review on 
October 9, 2007, for Southern Fishery Industries Company, Ltd. 
(``South Vina''). However, unlike Binh An, South Vina did not agree 
to aligning its new shipper review with the concurrent 
administrative review and therefore, the preliminary results for 
South Vina were issued on July 22, 2008. See Notice of Preliminary 
Rescission of New Shipper Review: Certain Frozen Fish Fillets from 
the Socialist Republic of Vietnam, 73 FR 43689 (July 28, 2008).
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    On October 12, 2007, the Department issued a letter to all 
interested parties informing them of its decision to select QVD and 
Vinh Hoan Co., Ltd. (``Vinh Hoan''), the two largest exporters of 
subject merchandise during the POR, as mandatory respondents based on 
Customs and Border Protection (``CBP'') import data. See Memorandum to 
the File from Catherine Bertrand, Senior Case Analyst Through Alex 
Villanueva, Program Manager, Respondent Selection Memorandum 
(``Respondent Selection Memo''), dated October 11, 2007.
    Between November 1, 2007, and August 25, 2008, QVD submitted 
responses to the original sections A, C, and D questionnaires and 
supplemental sections A, C, and D questionnaires. Between November 11, 
2007, and August 15, 2008, Binh An submitted responses to the original 
sections A, C, and D questionnaires and supplemental sections A, C, and 
D questionnaires. Vinh Hoan also submitted questionnaire responses, as 
indicated below; however, the administrative review for Vinh Hoan was 
rescinded. On August 22, 2008, Petitioners submitted comments regarding 
the preliminary results with respect to QVD and Binh An.
    On March 3, 2008, the Department extended the preliminary results 
of administrative review and rescinded the administrative with respect 
to 25 companies, including Vinh Hoan, because all requesting parties 
for those companies timely withdrew their requests for review. See 
Extension and Partial Rescission Notice. Therefore, seven companies 
remain in this administrative review: An Xuyen Company Ltd. (``An 
Xuyen''), Lian Heng Trading Co., Ltd (``Lian Heng''), QVD Food Company, 
Ltd. (``QVD''), QVD Dong Thap Food Co., Ltd. (``QVD DT''), Thuan Hung 
Co., Ltd. (``Thuan Hung''), An Giang Fisheries Import and Export Joint 
Stock Company (``Agifish'' or ``AnGiang Fisheries Import and Export''); 
Anvifish Co., Ltd. (``Anvifish'').

An Xuyen/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 3. In this case, we sent companies who were not 
selected the separate rates application and certification. See Letter 
to All Interested Parties, dated October 17, 2007. An Xuyen did not 
apply for a separate rate in this administrative review. Therefore, An 
Xuyen 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.

Preliminary Partial Rescission

Lian Heng

    On October 22, 2007, Lian Heng stated that it made no exports of 
subject merchandise during the POR. Our examination of shipment data 
from CBP for Lian Heng confirmed that there were no entries of subject 
merchandise from it during the POR. Therefore, because the record 
indicates that Lian Heng did not sell subject merchandise to the United 
States during the POR, we are preliminarily rescinding the 
administrative review for Lian Heng. See 19 CFR 351.213(d)(3).

QVD, QVD DT and Thuan Hung

    On November 1, 2007, we received a questionnaire response from QVD 
indicating that QVD, QVD DT and Thuan Hung had export licenses during 
the POR, but that only QVD exported subject merchandise to the United 
States during the POR. See QVD's Questionnaire Response at 5. QVD, QVD 
DT and Thuan Hung provided a joint response to the separate rates 
section of the Department's questionnaires. Our examination of shipment 
data from CBP for QVD DT and Thuan Hung confirmed that there were no 
entries of subject merchandise from these entities during the POR. 
However, because QVD, QVD DT and Thuan Hung will continue to be treated 
as a single entity (see ``Affiliations'' section below), we will not 
rescind the review for QVD DT and Thuan Hung, because a component of 
the QVD Single Entity had entries of subject merchandise during the POR 
and remains subject to the administrative review.

Agifish & Anvifish

    On November 30, 2007, Agifish submitted a separate rate 
certification. On December 11, 2007, Anvifish submitted a separate rate 
application. We also examined the CBP data placed on the record and 
confirmed that Agifish and Anvifish had entries of subject merchandise 
during the POR.

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

[[Page 52017]]

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 Results and Partial Rescission of Antidumping Duty Administrative 
Review, 63 FR 12440 (March 13, 1998).
    In this review, Agifish, Anvifish, QVD, and Binh An \3\ submitted 
complete responses to the separate rates certification and application. 
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 supports 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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    \3\ Binh An addressed the separate rates section of the 
Department's questionnaire in its November 1, 2007, submission.
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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, Anvifish, QVD, and Binh An 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, Anvifish, QVD, and 
Binh An have established prima facie that they qualify for separate 
rates under the criteria established by Silicon Carbide and Sparklers.

Rate for Non-Selected Companies

    The statute and the Department's regulations do not directly 
address the establishment of rates to be applied to companies not 
selected for examination where the Department limited its examination 
in an administrative review pursuant to section 777A(c)(2) of the Act. 
However, we normally determine the rates for non-selected companies in 
reviews in a manner that is consistent with section 735(c)(5) of the 
Act. In this review, we have only a de minimis company-specific dumping 
margin for QVD, the only mandatory respondent. However, we also have 
considered that we found dumping margins in previous segments of this 
proceeding. Therefore, based on the facts of this case, we have 
considered the prior rates calculated for these companies and others in 
choosing a reasonable method to determine the rates for these companies 
in the current review. See Brake Rotors From the People's Republic of 
China: Final Results of 2006-2007 Administrative and New Shipper 
Reviews and Partial Rescission of 2006-2007 Administrative Review, 73 
FR 32678 (June 10, 2008) and accompanying Issues and Decision 
Memorandum at Comment 1 (``the selection of a `reasonable method' to 
use when, as here, the rates of the mandatory respondents are zero and 
de minimis, must be made on a case-by-case basis and would depend on 
the facts of the case''). For the separate rate companies, that method 
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.
    Anvifish recently received a calculated rate of de minimis in a new 
shipper review. See Notice of Amended Final Results of Antidumping Duty 
New Shipper Review: Certain Frozen Fish Fillets from Vietnam (``New 
Shipper Review Final''), 73 FR 47884 (August 15, 2008). Agifish has not 
been subject to an administrative review since the less-than-fair-value 
investigation in which it received a rate of 47.05 percent. See Order. 
For purposes of these preliminary results, we have assigned Anvifish's 
de minimis rate calculated in the recent new shipper review as 
Anvifish's non-selected separate rate in this review. For Agifish, we 
have assigned the rate of 15.38 percent, which represents the most 
recent calculated rate that is not zero or de minimis and not based 
entirely on facts available and a rate for a period that is more recent 
than is Agifish's rate from the investigation. For the Vietnam-wide 
entity (including An Xuyen), we have assigned the entity's current rate 
and only rate ever determined for the entity in this proceeding.

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.

[[Page 52018]]

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'').\4\ 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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    \4\ 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 normal value (``NV'') in 
accordance with section 773(c) of the Act, which applies to NME 
countries.

Surrogate Country and Surrogate Values

    On February 25, 2008, the Department sent interested parties a 
letter requesting comments on surrogate country selection and 
information pertaining to valuing factors of production (``FOP''). Binh 
An submitted surrogate country comments and surrogate value data on 
March 24, 2008. QVD and Petitioners submitted surrogate country 
comments and surrogate value data on May 22, 2008.

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 Matthew 
Renkey, Senior Case Analyst, dated September 2, 2008.
    The Department determined that Bangladesh, Pakistan, India, 
Indonesia, and Sri Lanka are countries comparable to Vietnam in terms 
of economic development.\5\ 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). 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 
publicly available and reliable data. See Memorandum to the File, from 
Alan Ray, Case Analyst, dated September 2, 2008. 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 used data from Indian sources.
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    \5\ See Memorandum from Carole Showers, 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 (February 20, 
2008).
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    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 restraint 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 pursuant to sections 771(33)(A), (B), (E), (F), and (G) of 
the Act and 19 CFR 351.401 (f). See 3rd AR Final Results. The 
Department also determined that QVD USA LLC (``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 CEP through QVD USA to its first 
unaffiliated U.S. customer. See 3rd AR Final Results. The Department 
also determined that Beaver Street Fisheries (``BSF'') and QVD USA were 
not affiliated. See 3rd AR Final Results.

[[Page 52019]]

    In QVD's supplemental section A response, it stated that 
``{d{time} uring the POR there were no changes in the corporate 
structures of any of the QVD companies, or affiliates. There were no 
changes from POR 3 in the capital structure, scope of operations, 
affiliations, production capacity, ownership or management.'' See QVD's 
July 11, 2008, Section A Supplemental Questionnaire at 20.
    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 AR Final Results. 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.

Fair Value Comparisons

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

U.S. Price

    For Binh An'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 sale, 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 U.S. sales through its 
U.S. affiliate, QVD USA, to unaffiliated customers.
    For QVD'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 carry 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 Binh An for the new shipper review. We 
preliminarily find that the new shipper sales made by Binh An are bona 
fide transactions. Based on our investigation into the bona fide nature 
of the sales, the questionnaire responses submitted by Binh An, as well 
the company's eligibility for a separate rate (see ``Separate Rates'' 
section above), and the Department's preliminary determination that 
Binh An was not affiliated with any exporter or producer that had 
previously shipped subject merchandise to the United States, we 
preliminarily determine that Binh An has met the requirements to 
qualify as a new shipper during the POR. Therefore, for purposes of 
these preliminary results of review, we are treating Binh An'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 Binh An's sales during verification and for 
the final results.

Duty Absorption

    On October 25, 2007, Petitioner requested that the Department 
determine whether antidumping duties had been absorbed for U.S. sales 
of frozen fish fillets made during the POR by the respondents selected 
for review. Section 751(a)(4) of the Act provides for the Department, 
if requested, to determine during an administrative review initiated 
two or four years after publication of the order, whether antidumping 
duties have been absorbed by a foreign producer or exporter, if the 
subject merchandise is sold in the United States through an affiliated 
importer. In this case, only QVD sold subject merchandise in the United 
States through an affiliated importer. Because the antidumping duty 
order underlying this review was issued in 2003, and this review was 
initiated in 2007, we are conducting a duty absorption inquiry for this 
segment of the proceeding.
    In determining whether the antidumping duties have been absorbed by 
the respondent, we presume the duties will be absorbed for those sales 
that have been made at less than NV. This presumption can be rebutted 
with evidence (e.g., an agreement between the affiliated importer and 
unaffiliated purchaser) that the unaffiliated purchaser will pay the 
full duty ultimately assessed on the subject merchandise. See, e.g., 
Certain Stainless Steel Butt-Weld Pipe Fittings From Taiwan: 
Preliminary Results of Antidumping Duty Administrative Review and 
Notice of Intent to Rescind in Part, 70 FR 39735, 39737 (July 11, 2005) 
(unchanged in final results). On August 18, 2008, the Department 
requested QVD to provide evidence to demonstrate that its unaffiliated 
U.S. purchasers will pay any antidumping duties ultimately assessed on 
entries of subject merchandise.
    On August 25, 2008, QVD filed a response rebutting the duty-
absorption presumption by explaining that the ultimate unaffiliated 
U.S. purchasers paid for the duties. QVD references its financial 
statements and a transaction-specific analysis in which they argue that 
even after all price adjustments are considered, QVD has passed on duty 
costs to unaffiliated customers. We conclude that this information 
sufficiently demonstrates that the unaffiliated purchasers in the 
United States will ultimately pay the assessed duties. See QVD's August 
25, 2008, Submission at 2. Therefore, we preliminarily find that 
antidumping duties have not been absorbed by QVD on U.S. sales made 
through its affiliated importer.

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

[[Page 52020]]

by QVD and Binh An, pursuant to sections 773(c)(3) and (4) of the Act 
and 19 CFR 351.408(c).
    As the basis for NV, QVD and Binh An 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 and Binh An's reported per-unit 
factor quantities using publicly available Bangladeshi, Indian, and 
Indonesian surrogate values. 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, 2006, through July 31, 2007:

                Certain Frozen Fish Fillets from Vietnam
------------------------------------------------------------------------
           Manufacturer/exporter              Weighted- average margin
------------------------------------------------------------------------
QVD \6\...................................  de minimis
Anvifish..................................  de minimis
Agifish...................................  15.38
Binh An...................................  de minimis
Vietnam-wide Entity \7\...................  63.88
------------------------------------------------------------------------
\6\ This rate is applicable to the QVD Single Entity which includes QVD,
  QVD DT, and Thuan Hung.
\7\ Includes An Xuyen.

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 20 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 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 respondent, QVD, and new 
shipper, Binh An, we will calculate importer-specific duty assessment 
rates on a per-unit basis.\8\ Where the assessment rate is de minimis, 
we will instruct CBP to assess 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.
---------------------------------------------------------------------------

    \8\ 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, 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 63.88 percent, 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.

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.

[[Page 52021]]

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: September 2, 2008.
David M. Spooner,
Assistant Secretary for Import Administration.
[FR Doc. E8-20755 Filed 9-5-08; 8:45 am]
BILLING CODE 3510-DS-P