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

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

EFFECTIVE DATE:

March 24, 2008.

FOR FURTHER INFORMATION CONTACT:

Catherine Bertrand, Paul Walker or Alex Villanueva, 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) 482-3207, (202) 482-0413, and (202) 482-3208 respectively.

SUPPLEMENTARY INFORMATION:

CASE HISTORY

On September 19, 2007, the Department of Commerce (the “Department”) published in the Federal Register the preliminary results of this administrative review of the antidumping duty order on certain frozen fish fillets from the Socialist Republic of Vietnam (“Vietnam”). See Certain Frozen Fish Fillets From the Socialist Republic of Vietnam: Notice of Preliminary Results and Partial Rescission of the Third Antidumping Duty Administrative Review, 72 FR 53527 (September 19, 2007) (“Preliminary Results”). Since the Preliminary Results, the following events have occurred.

From September 24-26, 2007, the Department conducted the verification of QVD USA LLC in Bellevue, Washington. From October 1-2, 2007, the Department verified QVD in Ho Chi Minh City, from October 3-4, 2007, the Department verified QVD Dong Thap Food Co., Ltd., from October 5-9, 2007, the Department verified Thuan Hung Co., Ltd., and from October 10-12, 2007, the Department verified QVD Choi Moi Farming Cooperative.

On December 28, 2007, the Petitioners, Catfish Farmers of America and individual U.S. catfish processors, and QVD Food Company (“QVD”) submitted case briefs. QVD's case brief included issues for Lian Heng Trading Co., Ltd. (“Lian Heng”) as well. On January 10, 2008, the Petitioners, QVD, Lian Heng, and East Sea Seafoods Joint Venture Co., Ltd. (“ESS”) submitted rebuttal briefs.

On January 23, 2008, the Department extended the time limit for completion of the final results of this administrative review by sixty days. See Certain Frozen Fish Fillets From the Socialist Republic of Vietnam: Extension of Time Limit for Final Results of the Third Antidumping Duty Administrative Review, 73 FR 3945 (January 23, 2008).

On March 6, 2008, the Department conducted a public and a closed hearing. Counsel for the Petitioners, QVD, and ESS attended.

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”).⁵ 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.

ANALYSIS OF COMMENTS RECEIVED

All issues raised in the case and rebuttal briefs by parties to this proceeding and to which we have responded are listed in the Appendix to this notice and addressed in the Issues and Decision Memorandum (“Final Decision Memo”), which is hereby adopted by this notice. Parties can find a complete discussion of the issues raised in this administrative review and the corresponding recommendations in this public memorandum which is on file in the Central Records Unit (“CRU”), room 1117 of the main Department building. In addition, a copy of the Final Decision Memo can be accessed directly on our website at http://ia.ita.doc.gov/. The paper copy and electronic version of the Final Decision Memo are identical in content.

VERIFICATION

As provided in section 782(i) of the of the Tariff Act, as Amended (“the Act”), we conducted verification of the information submitted by QVD, its affiliated Vietnamese companies, QVD USA LLC, QVD Dong Thap Food Co., Ltd., Thuan Hung Co., Ltd., and QVD Choi Moi Farming Cooperative, for use in our final results. See Memorandum to the File, through, Alex Villanueva, Program Manager, AD/CVD Operations, Office 9, from Michael Holton, Senior Case Analyst, AD/CVD Operations, Office 9, Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Verification of QVD Food Company, Ltd., dated December 11, 2007; Memorandum to the File, through, Alex Villanueva, Program Manager, AD/CVD Operations, Office 9, from Michael Holton, Senior Case Analyst, AD/CVD Operations, Office 9, Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Verification of QVD USA LLC, dated December 11, 2007; Memorandum to the File, through, Alex Villanueva, Program Manager, AD/CVD Operations, Office 9, from Michael Holton, Senior Case Analyst, AD/CVD Operations, Office 9, Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Verification of QVD Dong Thap Food Co., Ltd. and Thuan Hung Co., Ltd., dated December 11, 2007; and, Memorandum to the File, through, Alex Villanueva, Program Manager, AD/CVD Operations, Office 9, from Michael Holton, Senior Case Analyst, AD/CVD Operations, Office 9, Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Verification of QVD Choi Moi Farming Cooperative, dated December 13, 2007. For all companies, we used standard verification procedures, including examination of relevant accounting and production records, as well as original source documents provided by the Respondents.

CHANGES SINCE THE PRELIMINARY RESULTS

Based on a review of the record as well as comments received from parties regarding our Preliminary Results, we have made revisions to the margin calculation for QVD and ESS for the final results. For all changes to the calculations of QVD and ESS, see the Final Decision Memo and company specific analysis memoranda.

ADVERSE FACTS AVAILABLE

Section 776(a)(2) of the Act provides that if an interested party: (A) withholds information that has been requested by the Department; (B) fails to provide such information in a timely manner or in the form or manner requested, subject to subsections 782(c)(1) and (e) of the Act; (C) significantly impedes a determination under the antidumping statute; or (D) provides such information but the information cannot be verified, the Department shall, subject to subsection 782(d) of the Act, use facts otherwise available in reaching the applicable determination.

Furthermore, section 776(b) of the Act provides that, if the Department finds that an interested party “has failed to cooperate by not acting to the best of its ability to comply with a request for information,” the Department may use information that is adverse to the interests of that party as facts otherwise available. Adverse inferences are appropriate “to ensure that the party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully.” See Statement of Administrative Action (“SAA”) accompanying the URAA, H.R. Doc. No. 316, 103d Cong., 2d Session at 870 (1994). An adverse inference may include reliance on information derived from the petition, the final determination in the investigation, any previous review, or any other information placed on the record. See section 776(b) of the Act.

In the Preliminary Results, the Department assigned a rate based on the use of total adverse facts available (“AFA”) to the Vietnam-Wide Entity, and Can Tho Agricultural and Animal Products Import Export Company (“CATACO”) because it failed to respond to the Department's two quantity and value questionnaires. We continue to find it is appropriate to apply total AFA to the Vietnam-wide entity and CATACO, as no parties provided comments on these issues. Therefore, we are continuing to apply AFA to the Vietnam-Wide Entity and CATACO.

In the Preliminary Results, we determined to apply total AFA to certain sales by Lian Heng. We are continuing to apply AFA to these sales by Lian Heng in these final results. See Comment 9D of the Final Decision Memo.

FINAL PARTIAL RESCISSION

In the Preliminary Results, the Department preliminarily rescinded this review with respect to the following nine companies: FAQUIMEX; Hung Vuong Co., Ltd.; NAVICO; Phu Thuan Company; DOCIFISH; Thuan Hung; United Seafood Packers Co., Ltd.; Van Duc Foods Export Joint Stock Co.; and Vietnam Fish-One. 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 CBP for these nine companies confirmed that there were no entries of subject merchandise from them during the POR. See Preliminary Results at 53530. Therefore, we are rescinding this administrative review with respect to the following nine companies: FAQUIMEX; Hung Vuong Co., Ltd.; NAVICO; Phu Thuan Company; DOCIFISH; Thuan Hung; United Seafood Packers Co., Ltd.; Van Duc Foods Export Joint Stock Co.; and Vietnam Fish-One.

In the Preliminary Results, the Department also preliminarily rescinded the review with respect to QVD Dong Thap Food Co., Ltd. (“QVD Dong Thap”), because QVD reported that QVD Dong Thap did not ship any subject merchandise to the United States during the POR.

We are continuing to find that QVD Dong Thap did not export subject merchandise to the United States during the POR, and therefore, we are rescinding this review with respect to QVD Dong Thap.

FINAL RESULTS OF REVIEW

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

Regarding Lian Heng, entries which are not accompanied by a country of origin certification (“Certification”) stating that the entry is not produced from Vietnamese-origin fish are subject to the Vietnam-wide rate of 63.88 percent.

ASSESSMENT

The Department will determine, and the U.S. Customs and Border Protection (“CBP”) shall assess, antidumping duties on all appropriate entries, pursuant to 19 CFR 351.212(b). We have calculated importer-specific duty assessment rates on a per-unit basis. Specifically, we divided the total dumping margins (calculated as the difference between normal value and export price or constructed export price) for each importer by the total quantity of subject merchandise sold to that importer during the POR to calculate a per-unit assessment amount. In this and future reviews, 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. The Department intends to issue appropriate assessment instructions directly to CBP 15 days after publication of the final results of this administrative 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 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) The cash deposit rate for each of the reviewed companies that received a separate rate in this review will be the rate listed in the final results of review (except that if the rate for a particular company is de minimis, i.e., less than 0.5 percent, no cash deposit will be required for that company); (2) for previously investigated companies not listed above, the cash deposit rate will continue to be the company-specific rate published for the most recent period of review; (3) if the exporter is not a firm covered in this review, a prior review, or the original LTFV investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; and (4) the cash deposit rate for all other manufacturers or exporters will be the Vietnam-wide rate of 63.88 percent. These deposit requirements, when imposed, shall remain in effect until publication of the final results of the next administrative review.

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 orders (“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 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.

Appendix I Decision Memorandum

GENERAL ISSUES:

COMMENT 1: SURROGATE FINANCIAL RATIOS

A. BINOIC

B. GEMINI

COMMENT 2: CEP PROFIT METHODOLOGY

COMMENT 3: PER-UNIT CASH DEPOSIT AND ASSESSMENT RATE

COMMENT 4: WHOLE LIVE FISH SURROGATE VALUES

COMPANY-SPECIFIC ISSUES:

COMMENT 5: QVD

A. QVD'S SALES TO BSF

B. COLLAPSING QVD/DONG THAP AND THUAN HUNG

C. COLLAPSING QVD/DONG THAP AND CHOI MOI

D. INTERNATONAL FREIGHT

E. BANDING SURROGATE VALUE

F. TAPE SURROGATE VALUE

G. LABELS SURROGATE VALUE

H. WATER SURROGATE VALUE

COMMENT 6: DONG THAP

A. LABOR HOURS FOR CERTAIN WORKERS

B. BYPRODUCTS

C. CARTONS

D. BROKEN FILLETS

E. PALLETS AND PLASTIC SHEETS

COMMENT 7:THUAN HUNG

A. LABOR HOURS RECONCILIATION

B. ELECTRICITY

C. WASTE

COMMENT 8: ESS

A. BONA FIDE STATUS OF ESS'S SALES

B. INDIRECT SELLING EXPENSES

C. BYPRODUCTS

D. WHOLE LIVE FISH FACTOR OF PRODUCTION

E. FISH OIL SURROGATE VALUE

COMMENT 9: LIAN HENG

A. CERTIFICATIONS

B. ASSESSMENT OF DUTIES

C. ASSESSMENT FOR CERTAIN INVOICES

D. APPLICATION OF AFA

E. SELECTED AFA RATE