[Federal Register: September 11, 2006 (Volume 71, Number 175)]
[Notices]
[Page 53387-53400]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11se06-34]
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DEPARTMENT OF COMMERCE
International Trade Administration
A-552-801
Certain Frozen Fish Fillets from the Socialist Republic of
Vietnam: Preliminary Results of Antidumping Duty Administrative Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce (the ``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'') sold subject merchandise at less than normal
value (``NV'') during the period of review (``POR''), August 1, 2004,
through July 31, 2005. If these preliminary results are adopted in our
final results of review, we will instruct U.S. Customs and Border
Protection (``CBP'') to assess antidumping duties on all appropriate
entries.
EFFECTIVE DATE: September 11, 2006.
FOR FURTHER INFORMATION CONTACT: Julia Hancock, 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) 482-1394.
SUPPLEMENTARY INFORMATION:
Case History
General
On August 1, 2005, the Department published a notice of opportunity
to request an administrative review on the antidumping duty order on
certain frozen fish fillets from Vietnam. See Antidumping or
Countervailing Duty Order, Finding, or Suspended Investigation;
Opportunity To Request Administrative Review, 70 FR 44085 (August 1,
2005). On August 26, 2005, we received a request for review from Phan
Quan Trading Co., Ltd. (``Phan Quan''). On August 31, 2005, we received
requests for review from An Giang Agriculture and Foods Import-Export
Company (``Afiex''); Vinh Hoan Company, Ltd. (``Vinh Hoan''); Can Tho
Agricultural and Animal Products Import Export Company (``Cataco'');
QVD; and Nam Viet Company, Ltd. (``Navico''). Also on August 31, 2005,
we received a request from Catfish Farmers of America and individual
U.S. catfish processors (``Petitioners'') to conduct an administrative
review of twenty-nine Vietnamese exporters and/or producers.\1\
Petitioners' August 31, 2005, administrative review request included
Phan Quan, Afiex, Vinh Hoan, Cataco, QVD and Navico. On September 28,
2005, the Department initiated this administrative review, covering the
aforementioned twenty-nine companies. See Initiation of Antidumping and
Countervailing Duty Administrative Reviews and Requests for Revocation
in Part (``Initiation Notice''), 70 FR 56631 (September 28, 2005).
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\1\ Petitioners requested a review on the following companies:
(1) Afiex, which also requested a review; (2) An Giang Agriculture
Technology Service Company (``ANTESCO''); (3) An Giang Fisheries
Import and Export Joint Stock Company (``Agifish''); (4) Anhaco; (5)
Bamboo Food Co., Ltd. (``Bamboo Food''); (6) Binh Dinh Import Export
Company (``Binh Dinh''); (7) Cataco, which also requested a review;
(8) Can Tho Animal Fishery Products Processing Export Enterprise
(``Cafatex''); (9) Da Nang Seaproducts Import-Export Corporation
(``Danang''); (10) Duyen Hai Foodstuffs Processing Factory (``Duyen
Hai''); (11) Gepimex 404 Company (``Gepimex''); (12) Hai Vuong Co.,
Ltd. (``Hai Vuong''); (13) Kien Giang Ltd. (``Kien Giang''); (14)
Mekong Fish Company (``Mekonimex''); (15) Navico, which also
requested a review; (16) Phan Quan, which also requested a review;
(17) Phu Thanh Frozen Factory (``Phu Thanh''); (18) Phuoc My
Seafoods Processing Factory (``Phuoc My''); (19) QVD, which also
requested a review; (20) Seaprodex Saigon; (21) Tan Thanh Loi Frozen
Food Co., Ltd. (``Tan Thanh Loi''); (22) Thangloi Frozen Food
Enterprise (``Thanlgoi Frozen Food''); (23) Thanh Viet Co., Ltd.
(``Thanh Viet''); (24) Thuan Hung Co., Ltd. (``Thuan Hung''); (25)
Tin Thinh Co., Ltd. (``Tin Thinh''); (26) Viet Hai Seafood Company
Limited (``Vietnam Fish-One''); (27) Vifaco; (28) Vinh Hoan, which
also requested a review; and (29) Vinh Long Import-Export Company
(``Vinh Long'').
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Quantity and Value (``Q&V'') Questionnaires
On September 14, 2005, the Department issued questionnaires
requesting the total quantity and value of subject merchandise exported
to the United States during the POR to all 29 companies subject to the
administrative review. On September 28, 2005, a memorandum to the file
was placed on the record by the Department noting that Federal Express
(``Fed Ex'') tracking confirmed that the Q&V questionnaires were
delivered to all 29 companies. See Memorandum to the File, through
Cindy Robinson, Acting Program Manager, from Julia Hancock, Case
Analyst, Subject: Certain Frozen Fish Fillets from the Socialist
Republic of Vietnam (``Vietnam''): Initial Questionnaires Timeline,
(September 28, 2005).
On September 20, 2005, Vietnam Fish-One submitted a letter to the
Department stating that it made no shipments of subject merchandise to
the United States during the POR. On September 30, 2005, QVD, Vinh
Hoan, Cafatex, and Navico submitted Q&V responses. On October 1, 2005,
Danang, Mekonimex, Thanh Viet, Phu Thanh, and Afiex submitted Q&V
responses. Also, on October 3, 2005, Agifish and Cataco submitted Q&V
responses.
On October 5 and 6, 2005, the Department sent a letter to five
companies (i.e., Danang, Mekonimex, Thanh Viet, Phu Thanh, and Afiex),
requesting that each company resubmit their Q&V response because: (1)
Danang failed to answer all questions from the
[[Page 53388]]
questionnaire and failed to follow the Department's filing procedures
pursuant to its regulations; (2) Mekonimex failed to submit a public
version of its questionnaire response; (3) Thanh Viet failed to answer
all questions from the questionnaire and failed to follow the
Department's filing procedures pursuant to its regulations; (4) Phu
Thanh failed to answer all questions from the questionnaire and failed
to follow the Department's filing procedures pursuant to its
regulations; and (5) Afiex's Q&V response was not properly labeled as a
proprietary document and was rejected for overbracketing of proprietary
information. Also, on October 6, 2005, the Department issued a letter
requesting the sixteen companies who had not responded to the
Department's original Q&V questionnaire to submit such response.\2\
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\2\ The sixteen companies that did not respond to the
Department's September 14, 2005, Q&V questionnaire are: (1) Duyen
Hai; (2) Gepimex; (3) Hai Vuong; (4) Kien Giang; (5) Thangloi
Frozen; (6) Tan Thanh Loi; (7) Thuan Hung; (8) ANTESCO; (9)
Seaprodex Saigon; 10) Anhaco; (11) Vinh Long; (12) Vifaco; (13) Tin
Thinh; (14) Binh Dinh; (15) Bamboo Food; and (16) Phan Quan.
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On October 19, 2005, Vifaco submitted a letter to the Department
stating that it made no shipments of subject merchandise to the United
States during the POR. On October 20, 2005, Phan Quan submitted a Q&V
response to the Department.
On November 2, 2005, the Department sent a second letter to six
companies, (i.e., Danang, Thanh Viet, Tin Thinh, Mekonimex, Thuan Hung,
and Afiex), requesting that each company resubmit their respective Q&V
response because: (1) Danang failed to bracket the proprietary
information in the appropriate format and provide a public version of
the proprietary questionnaire response; (2) Thanh Viet failed to answer
all the questions from the questionnaire and identify whether its
submission was a public or proprietary document; (3) Tin Thinh failed
to bracket the proprietary information and provide a public version;
(4) Mekonimex failed to provide a public summary of the proprietary
information; (5) Thuan Hung failed to answer all of the questions from
the questionnaire and identify whether its submission was a public or
proprietary document; and (6) Afiex failed to provide a public summary
of the proprietary information. Also, on November 2, 2005, the
Department placed on the record memoranda to the file stating that the
Department had removed Afiex, Thuan Hung, Mekonimex, and Thanh Viet's
Q&V responses from the record of this review and returned the responses
to the respective company because the Department was unable to consider
each company's resubmitted Q&V response for the above reasons.
On November 3, 2005, the Department issued a letter to Tin Thinh
regarding the deadline for Tin Thinh's second resubmitted Q&V response.
On November 8, 2005, Thuan Huang resubmitted its Q&V response. On
November 9, 2005, Thanh Viet, Mekonimex, and Afiex resubmitted their
Q&V responses. On November 9, 2005, the Department issued a letter to
Tin Thinh stating that, because the Department's November 3, 2005,
letter to Tin Thinh was returned by Fed Ex, Tin Thinh's second
resubmitted Q&V response was due on November 16, 2005.
On November 9, 2005, a memorandum to the file was placed by the
Department noting that Fed Ex tracking confirmed that the second Q&V
letter was delivered to the 16 companies\3\ that did not respond to the
Department's September 14, 2005, Q&V questionnaire. Additionally, Fed
Ex tracking confirmed that the Department's October 5, 2005, and
October 6, 2005, letters to Afiex, Danang, Mekonimex, Thanh Viet, and
Phu Thanh were delivered to the respective companies.
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\3\ The sixteen companies are: (1) Duyen Hai; (2) Gepimex; (3)
Hai Vuong; (4) Kien Giang; (5) Thangloi Frozen; (6) Tan Thanh Loi;
(7) Thuan Hung; (8) ANTESCO; (9) Seaprodex Saigon; (10) Anhaco; (11)
Vinh Long; (12) Vifaco; (13) Tin Thinh; (14) Binh Dinh; (15) Bamboo
Food; and (16) Phan Quan.
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On November 16, 2005, Afiex submitted a letter clarifying its
November 9, 2005, Q&V response. On November 17, 2005, a memorandum to
the file was placed on the record by the Department noting that Fed Ex
tracking confirmed that the Department's November 2, 2005, letters to
Afiex, Danang, Mekonimex, Thanh Viet, Thuan Hung, and Tin Thinh were
delivered to the respective companies.
On November 21, 2005, Petitioners submitted comments on respondent
selection. On November 21, 2005, the Department sent a letter to Danang
rejecting Danang's Q&V response for filing deficiencies. Also, on
November 28, 2005, the Department sent a letter to Tin Thinh rejecting
Tin Thinh's Q&V response for filing deficiencies.
On November 29, 2005, Petitioners resubmitted their November 21,
2005, comments on respondent selection. On November 30, 2005, the
Department issued letters to Mekonimex and Cataco requesting
clarification of their reported Q&V data.
On December 7, 2005, Vietnam Fish-One submitted a response to
Petitioners' respondent selection comments.
On December 19, 2005, Danang resubmitted a Q&V questionnaire
response, explaining that, as a pro se company, it attempted to
cooperate and misunderstood the Department's filing requirements. In
addition, on December 19, 2005, the Department placed a memorandum to
the file on the record noting that Cataco's quantity and value
clarification response received via email communication was placed on
the record.
On December 27, 2005, Cataco submitted a Q&V clarification
response.
On December 29, 2005, Petitioners submitted comments on Danang's
December 19, 2005, Q&V response and on Cataco's December 27, 2005, Q&V
clarification response.
On January 4, 2006, Danang submitted rebuttal comments in response
to Petitioners' December 29, 2005, submission.
On January 13, 2006, the Department selected the four largest
exporters/producers of subject merchandise during the POR as mandatory
respondents: QVD; Cafatex; Mekonimex; and Cataco. See Memorandum to
Stephen J. Claeys, Deputy Assistant Secretary for Import
Administration, from James C. Doyle, Office Director, Office 9, AD/CVD
Operations, Import Administration, Subject: Antidumping Duty
Administrative Review of Certain Frozen Fish Fillets from the Socialist
Republic of Vietnam: Selection of Respondents (January 13, 2006)
(``Respondent Selection Memo'').
Partial Rescission
On November 21, 2005, Petitioners withdrew their request on the
following fourteen exporters that did not individually request a
review: Bamboo Food; Caseafex; Gepimex; Hai Vuong; Kien Giang; Phu
Thanh; Phuoc My; Seaprodex Saigon; Tan Thanh Loi; Thangloi Frozen Food;
Thanh Viet; Thuan Hung; Tin Thinh; and Vifaco. Additionally,
Petitioners withdrew their request on the following three companies who
had individually requested a review: Afiex; Phan Quan; and Vinh Hoan.
On December 23, 2005, Vinh Hoan withdrew its request for an
administrative review. Additionally, on December 23, 2005, H&N Foods
International (``H&N''), a U.S. importer of the subject merchandise,
requested that the Department extend the deadline for withdrawing
requests review in this proceeding by thirty days. On December 27,
2005, Vinh Hoan submitted a letter to the Department requesting that
its
[[Page 53389]]
withdrawal letter dated December 23, 2005, be disregarded.
Additionally, on December 27, 2005, the Department extended the
deadline for withdrawing requests for review in this proceeding by ten
days from December 27, 2005, to January 6, 2006.
On January 5, 2006, H&N requested that the Department extend the
deadline, which was January 6, 2006, for withdrawing requests in this
administrative review until two days after the Department's issuance of
its decision regarding respondent selection in this administrative
review. On January 9, 2006, Vinh Hoan again withdrew its request for a
review in this administrative review. Additionally, on January 11,
2006, Petitioners withdrew their request of two additional companies,
Danang and Agifish, both of which did not individually request a
review. Moreover, Petitioners also did not object to Vinh Hoan's
January 9, 2006, request to withdraw its request for a review.
Subsequently, on February 7, 2006, due to the withdrawal of
Petitioners' and Vinh Hoan's review requests, the Department rescinded
the review with respect to Agifish; Bamboo Food; Coseafex; Danang;
Gepimex; Hai Vuong; Kien Giang; Phu Thanh; Phuoc My; Seaprodex Saigon;
Tan Thanh Loi; Thangloi Frozen Food; Thanh Viet; Thuan Hung; Tin Thinh;
Vifaco; and Vinh Hoan. Additionally, the Department rescinded the
review with respect to Vietnam Fish-One, which reported that it made no
shipments of subject merchandise during the POR. See Certain Frozen
Fish Fillets from the Socialist Republic of Vietnam: Rescission, in
Part, and Extension of Preliminary Results of the Second Antidumping
Duty Administrative Review, 71 FR 6266 (February 7, 2006) (``Partial
Rescission and Extension of Preliminary Results''). On February 7,
2006, the Department extended the deadline for the preliminary results
of this review by 120 days, to August 31, 2006. Id.
Mandatory Respondents
On January 17, 2006, the Department sent the non-market economy
(``NME'') questionnaire to QVD, Cafatex, Mekonimex and Cataco.
Cataco
On February 3, 2006, the Department placed a memorandum to the file
on the record noting that on February 2, 2006, Cataco emailed the
Department requesting an extension of time to March 10, 2006, to
respond to the Department's NME questionnaire. On February 3, 2006, the
Department granted Cataco a one-week extension to respond to the
Department's questionnaire.
On February 13, 2006, Cataco submitted its section A response. On
February 27, 2006, Cataco submitted a letter requesting a one-week
extension to submit its sections C and D questionnaire response. On
February 27, 2006, the Department granted Cataco a one-week extension
to submit its sections C and D questionnaire response from March 2,
2006, to March 9, 2006.
On March 2, 2006, the Department issued a supplemental section A
questionnaire to Cataco. Additionally, on March 6, 2006, Cataco
submitted its sections C and D questionnaire response.
On March 14, 2006, the Department placed a memorandum to the file
on the record regarding an email from Cataco, which requested a two-
week extension to submit its supplemental section A questionnaire
response. Additionally, on March 14, 2006, the Department issued a
letter to Cataco granting a one-week extension to submit its
supplemental section A questionnaire response from March 20, 2006, to
March 27, 2006.
On March 20, 2006, a the Department placed a memorandum to the file
on the record regarding placing information with respect to Cataco from
the first administrative review on the record of this review.
Additionally, on March 20, 2006, the Department issued a supplemental
sections C and D questionnaire to Cataco.
On March 23, 2006, Cataco submitted its supplemental section A
questionnaire response. On April 4, 2006, Cataco requested a two-week
extension to submit its supplemental section C questionnaire response.
On April 7, 2006, the Department granted Cataco a ten-day extension to
submit its supplemental section C questionnaire response from April 10,
2006, to April 20, 2006. On April 17, 2006, Cataco submitted its
supplemental sections C and D questionnaire response.
On June 1, 2006, the Department placed a memorandum to the file on
the record regarding placing Cataco's entry packages from CBP on the
record of this review. Additionally, on June 1, 2006, the Department
placed a memorandum to the file on the record regarding DC Lawyers' May
12, 2006, withdrawal as counsel for Cataco. Additionally, on June 14,
2006, the Department issued a second supplemental sections A, C and D
questionnaire to Cataco.
On June 28, 2006, Valley Fresh Seafood, Inc. (``Valley Fresh'')
submitted a letter to the Department addressing a business proprietary
section of Cataco's supplemental questionnaire. On July 3, 2006, Cataco
submitted a letter to the Department that it was partially withdrawing
from this administrative review and was not responding to the June 14,
2006, supplemental questionnaire.
On July 7, 2006, the Department issued a letter to Valley Fresh
that it was rejecting its June 28, 2006, letter, because it contained
new factual information. The deadline for submitting factual
information was June 1, 2006. Additionally, on July 7, 2006, the
Department placed a memorandum to the file on the record removing
Valley Fresh's June 28, 2006, letter from the record.
On July 17, 2006, Petitioners submitted a letter requesting that
the Department not accept Cataco's July 3, 2006, letter of partial
withdrawal. On July 19, 2006, the Department issued a letter rejecting
Cataco's partial withdrawal from this review and requested that Cataco
submit a full response to the June 14, 2006, supplemental
questionnaire.
On July 26, 2006, Valley Fresh submitted a letter to the Department
with respect to a business proprietary section of the Department's June
14, 2006, supplemental questionnaire to Cataco. On July 26, 2006,
Cataco submitted a letter to the Department stating that, except for a
certain business proprietary section, it was not responding to the June
14, 2006, supplemental questionnaire.
On August 1, 2006, the Department issued a letter to Valley Fresh
rejecting its July 26, 2006, letter because it contained new factual
information. On August 1, 2006, the Department also issued a letter to
Cataco rejecting its July 26, 2006 letter and requesting that Cataco
resubmit its letter without the attached June 28, 2006, letter from
Valley Fresh. Additionally, on August 1, 2006, the Department placed
memoranda to the file on the record noting that the July 26, 2006,
submissions from Valley Fresh and Cataco had been removed from the
record.
On August 3, 2006, Cataco submitted a letter, which contained
Valley Fresh's June 28, 2006, letter to the Department requesting that
it reconsider its decision to reject Cataco's July 26, 2006, letter. On
August 8, 2006, the Department issued a letter to Cataco rejecting its
August 3, 2006, letter and requesting that Cataco resubmit the letter
without the attached June 28, 2006, letter from Valley Fresh. On August
9, 2006, the Department placed a memorandum to the file on the record
removing Cataco's
[[Page 53390]]
August 3, 2006, submission from the record.
The Department did not receive a response from Cataco on August 14,
2006, which was the deadline to resubmit. On August 17, 2006, the
Department placed a memorandum to the file on the record noting, via
telephone communication with Cataco's counsel, that Cataco would not be
resubmitting its August 3, 2006, letter.
Cafatex
On January 27, 2006, Cafatex requested a week extension to submit
its section A response, which was due on February 7, 2006. On January
31, 2006, the Department granted Cafatex a one-week extension to submit
its section A response from February 7, 2006, to February 14, 2006.
On February 14, 2006, DLA Piper Rudnick Gray Cary LLP submitted a
letter withdrawing as counsel for Cafatex. On February 16, 2006, the
Department issued a letter to Cafatex noting that it had not received
Cafatex's section A questionnaire response, which was due on February
14, 2006, and had not received a request for extension. In the letter,
the Department requested that, if Cafatex intended to remain in the
review, it should submit its section A questionnaire response.
On February 27, 2006, the Department placed a memorandum to the
file on the record noting that in a facsimile dated February 21, 2006,
Cafatex confirmed its decision not to participate in the instant
administrative review.
Mekonimex
On February 8, 2006, the Department issued a letter to Mekonimex
noting that because the Department did not receive Mekonimex's section
A response, which was due on February 7, 2006, the deadline to submit
its section A response was extended to February 13, 2006. On February
15, 2006, Mekonimex submitted two letters stating that it would no
longer participate and that it was withdrawing from this review.
QVD
On January 30, 2006, QVD requested a two-week extension to submit
its section A response, which was due on February 7, 2006. On January
31, 2006, the Department granted QVD a week extension to submit its
section A response from February 7, 2006, to February 14, 2006.
On February 13, 2006, QVD requested a three-week extension to
submit its section C and D response.
On February 14, 2006, QVD submitted its section A response. Also,
on February 14, 2006, the Department granted QVD a week extension to
submit its sections C and D response from February 22, 2006, to March
1, 2006.
On February 21, 2006, QVD requested a two-week extension to submit
its sections C and D response. On February 23, 2006, Department granted
QVD a week extension to submit its sections C and D response from March
1, 2006, to March 8, 2006.
On March 8, 2006, QVD submitted its sections C and D questionnaire
response. Additionally, on March 9, 2006, the Department issued a
supplemental section A questionnaire to QVD.
On March 20, 2006, QVD requested a two-week extension to submit its
supplemental section A questionnaire response. On March 20, 2006, the
Department granted QVD a ten-day extension to submit its supplemental
section A questionnaire response from March 30, 2006, to April 10,
2006.
On March 21, 2006, the Department issued a supplemental sections C
and D questionnaire to QVD. Additionally, on March 30, 2006, a
memorandum to the file was placed by the Department regarding QVD's
supplemental section C questionnaire.
On April 4, 2006, QVD requested a three-week extension to submit
its supplemental section C questionnaire response. On April 5, 2006,
the Department granted QVD a ten-day extension to submit its
supplemental section C questionnaire response from April 10, 2006, to
April 20, 2006.
On April 10, 2006, QVD submitted its supplemental section A
questionnaire response. On April 11, 2006, QVD requested a three-week
extension to submit its supplemental section D questionnaire response.
On April 12, 2006, the Department granted QVD a ten-day extension to
submit its supplemental section D questionnaire response from April 18,
2006, to April 28, 2006.
On April 19, 2006, QVD requested a one-week extension to submit its
supplemental section C questionnaire response. Additionally, on April
19, 2006, the Department granted QVD a one-week extension to submit its
supplemental section C questionnaire response from April 20, 2006, to
April 28, 2006.
On April 24, 2006, QVD requested a one-week extension to submit its
supplemental section D questionnaire response. On April 25, 2006, the
Department granted QVD a one-week extension to submit its supplemental
section D questionnaire response from April 28, 2006, to May 5, 2006.
On April 28, 2006, QVD submitted its supplemental section C
questionnaire response. On May 5, 2006, QVD submitted its supplemental
section D questionnaire response. Additionally, on May 31, 2006, the
Department issued a second supplemental section D questionnaire to QVD.
On June 9, 2006, QVD requested a three-week extension to submit its
second supplemental section D questionnaire response. On June 13, 2006,
the Department granted QVD a ten-day extension to submit its second
supplemental section D questionnaire response from June 14, 2006, to
June 26, 2006.
On June 16, 2006, the Department placed QVD's entry packages from
CBP on the record of this review. On June 19, 2006, Petitioners
submitted deficiency comments on QVD's sections A and C questionnaire
responses.
On June 23, 2006, the Department issued a second supplemental
section A and C questionnaire to QVD. On June 27, 2006, QVD submitted
its second supplemental section D questionnaire response.
On July 12, 2006, the Department issued a third supplemental
section D questionnaire to QVD. On July 18, 2006, QVD requested a ten-
day extension to submit its third supplemental section D questionnaire
response.
On July 19, 2006, the Department granted QVD a six-day extension to
submit its third supplemental section D questionnaire response from
July 26, 2006, to August 1, 2006.
On July 21, 2006, the Department issued a fourth supplemental
section D questionnaire to QVD. Additionally, on July 21, 2006, QVD
submitted its second supplemental sections A and C questionnaire
response.
On July 26, 2006, the Department issued a third supplemental
section A and C questionnaire to QVD. On August 1, 2006, QVD submitted
its third and fourth supplemental section D questionnaire responses.
On August 1, 2006, QVD requested a five-day extension to submit its
third supplemental section A and C questionnaire response. On August 2,
2006, the Department granted QVD a four-day extension to submit its
section A and C questionnaire response from August 4, 2006, to August
8, 2006.
On August 2, 2006, QVD submitted a letter to the Department with
respect to an attachment that was missing from its August 1, 2006,
third and fourth supplemental section D questionnaire responses. On
August 2, 2006, the Department issued a fifth supplemental section D
questionnaire to QVD.
[[Page 53391]]
On August 8, 2006, QVD submitted its fifth supplemental section D
questionnaire response. On August 9, 2006, QVD submitted its third
supplemental sections A and C questionnaire responses.
On August 14, 2006, the Department issued a letter to QVD regarding
its section C database requesting the downstream sales to Customer A.
On August 21, QVD submitted its section C database response.
Additionally, on August 22, 2006, QVD submitted rebuttal pre-
preliminary comments.
Separate Rate Respondents
As noted above, on January 13, 2006, the Department selected four
mandatory respondents. On January 18, 2006, the Department sent section
A of the Department's NME questionnaire to the three remaining separate
rate respondents: Afiex, Navico and Phan Quan.
Afiex
On February 3, 2006, Afiex requested a one-week extension to submit
its section A response, which was due on February 7, 2006. On February
6, 2006, the Department granted Afiex a one-week extension to submit
its section A response from February 7, 2006, to February 14, 2006.
On February 13, 2006, Afiex requested a second extension of three
days to submit its section A response. On February 14, 2006, the
Department granted Afiex a three-day extension to submit its section A
response from February 14, 2006, to February 17, 2006. On February 17,
2006, Afiex submitted a section A response.
On March 2, 2006, the Department issued a supplemental section A
questionnaire to Afiex. On March 14, 2006, Afiex requested a one-week
extension to submit its supplemental section A questionnaire response.
Additionally, on March 16, 2006, the Department granted Afiex a one-
week extension to submit its supplemental section A questionnaire
response from March 23, 2006, to March 30, 2006.
On March 29, 2006, Afiex requested a second one-week extension to
submit its supplemental section A questionnaire response. On March 30,
2006, the Department granted Afiex a four-day extension to submit its
supplemental section A questionnaire response from March 30, 2006, to
April 3, 2006.
On April 4, 2006, Afiex submitted its supplemental section A
questionnaire response. On April 5, 2006, Afiex requested an extension
to submit documents that were not available when it submitted the
supplemental section A questionnaire response from April 4, 2006, to
April 10, 2006. On April 6, 2006, the Department issued a letter to
Afiex extending the deadline until April 10, 2006. Additionally, in the
letter to Afiex, the Department issued a second supplemental section A
questionnaire.
On April 10, 2006, Afiex requested an extension of two days to
submit its second supplemental section A questionnaire response. On
April 11, 2006, the Department granted Afiex a one-day extension to
submit its supplemental Section A questionnaire response from April 10,
2006, to April 11, 2006. Additionally, on April 11, 2006, Afiex
submitted its second supplemental section A questionnaire response.
On July 7, 2006, the Department issued a third supplemental section
A questionnaire to Afiex. On July 28, 2006, Afiex submitted a letter to
the Department that it was both not responding to third supplemental
section A questionnaire and withdrawing from this review.
Navico
On January 27, 2006, Navico requested a one-week extension to
submit its section A response, which was due on February 7, 2006. On
January 31, 2006, the Department granted Navico a one-week extension to
submit its section A response from February 7, 2006, to February 14,
2006.
On February 16, 2006, the Department issued a letter to Navico
noting that it had not received Navico's section A questionnaire
response, which was due on February 14, 2006, and had not received a
request for extension. In the letter, the Department requested that, if
Navico intended to remain in the review, it should submit its section A
questionnaire response.
On February 27, 2006, the Department issued a second letter to
Navico requesting that, if Navico intended to remain as a separate
rates respondent, Navico should submit a section A response by March 3,
2006. Additionally, in the letter, the Department requested that if
Navico was not going to submit a response, Navico should submit a
letter confirming its decision to not participate in this review.
On March 7, 2006, the Department place a memorandum to the file on
the record by the Department noting that via an e-mail received on
March 6, 2006, Navico confirmed its decision not to participate in this
administrative review.
Phan Quan
On February 3, 2006, Phan Quan requested a one-week extension to
submit its section A response. On February 6, 2006, the Department
granted Phan Quan a one-week extension to submit its section A response
from February 7, 2006, to February 14, 2006.
On February 13, 2006, Phan Quan requested a second extension of
three days to submit its section A response. On February 14, 2006, the
Department granted Phan Quan a three-day extension to submit its
section A response from February 14, 2006, to February 17, 2006.
On February 17, 2006, Phan Quan submitted its section A response.
Also on February 21, 2006, Phan Quan submitted a letter that included
attachments supplementing its section A response.
On March 28, 2006, the Department issued a supplemental section A
questionnaire to Phan Quan.
On April 19, 2006, the Department issued a letter to Phan Quan
noting that it had not received a response from Phan Quan for its
supplemental section A questionnaire response, which was due on April
18, 2006. In the letter, the Department granted Phan Quan a second,
final opportunity to submit its supplemental section A questionnaire
response by April 21, 2006. On April 26, 2006, Phan Quan submitted a
letter to the Department that it was not responding to the supplemental
section A questionnaire and withdrawing from this review.
Surrogate Country and Surrogate Values
On January 18, 2006, the Department placed a memorandum to the file
on the record extending the deadline for submission of factual
information by 50 days from January 18, 2006, to March 9, 2006. On
January 23, 2006, the Department issued a letter to the interested
parties requesting comments on surrogate country selection.
On February 27, 2006, Petitioners requested an extension of time to
submit comments on submission of factual information, comments on
surrogate country selection, and publicly available information to
value factors of production. On March 1, 2006, the Department issued a
memorandum to the file extending these deadlines to May 1, 2006.
On April 26, 2006, Petitioners and QVD requested extensions to
place factual information on the record, comments on surrogate country
selection, and publicly available information to value factors of
production. On April 27, 2006, the Department issued a letter extending
these deadlines to June 1, 2006.
[[Page 53392]]
On June 1, 2006, Petitioners and QVD submitted factual information.
On June 1, 2006, Petitioners and QVD also submitted surrogate value
information for the Department to consider for these preliminary
results. Also, on June 1, 2006, Petitioners submitted comments on
surrogate country selection. No other party submitted surrogate country
comments.
On June 12, 2006, Petitioners submitted rebuttal comments on the
surrogate value information submitted by QVD.
On August 1, 2006, the Department selected Bangladesh as the
surrogate country. On August 15, 2006, Petitioners submitted pre-
preliminary comments.
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
code 0304.20.60.33 (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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
Affiliations
Section 771(33) of the Act states that the Department considers the
following as affiliated: (A) Members of a family, including brothers
and sisters (whether by the whole or half blood), spouse, ancestors,
and lineal descendants; (B) any officer or 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, five 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; and (G) any person who controls any
other person and such other person. For purposes of affiliation,
section 771(33) of the ACT states that 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.
Based on the evidence on the record in this administrative review,
we preliminarily find that QVD is affiliated with Dong Thap Food Co.,
Ltd. (``Dong Thap'') and Company A,\5\ pursuant to section 771(33) of
the Act. For a detailed discussion of our analysis, please see
Memorandum to James C. Doyle, Office Director, Office 9, through Alex
Villanueva, Program Manager, Office 9, from Julia Hancock, Case
Analyst, Subject: QVD Affiliations Memorandum: 2\nd\ Administrative
Review of Certain Frozen Fish Fillets, (August 31, 2006) (``Affiliation
and Collapsing Memo''). In addition, based on the evidence presented in
QVD's questionnaire responses, we preliminarily find that QVD, Dong
Thap, and Company A should be treated as a single entity for purposes
of this administrative review. See 19 CFR 351.401(f)(1); see also,
Affiliation and Collapsing Memo for a discussion of the proprietary
aspects of this relationship. With respect to the criterion of
significant potential for manipulation of price of production, we note
that the Department normally considers three factors: (1) The level of
common ownership; (ii) the extent to which managerial employees or
board members of one firm sit on the board of directors of an
affiliated firm; and (iii) whether operations are intertwined, such as
through the sharing of sales, information, involvement in production
and pricing decisions, the sharing of facilities or employees, or
significant transactions between the affiliated producers. See 19 CFR
351.401(f)(2).
---------------------------------------------------------------------------
\5\ Because Company A's identity is business proprietary, it
cannot be disclosed in this notice. See Affiliation and Collapsing
Memo for further information.
---------------------------------------------------------------------------
Vietnamese Entities
Based on the information on the record of this proceeding, we
preliminarily find that QVD, Dong Thap, and Company A should be
collapsed. Accordingly, the Department should include the factors of
production for Company A in the Department's calculation of QVD's
normal value (``NV''). However, the Department does not currently have
this information on the record of the proceeding. Therefore, the
Department will request this information from QVD after the issuance of
these preliminary results. Additionally, we will be issuing an amended
preliminary calculation for comment after we receive Company A's
factors of production. Due to the proprietary nature of the information
with respect to these affiliates, this information cannot be discussed
herein. See Affiliation and Collapsing Memo for a further discussion of
this issue.
In addition, we preliminary find that Choi Moi Farming Cooperative
(``Choi Moi'') is affiliated with QVD pursuant to section 771(33) of
the Act. See Affiliation and Collapsing Memo for a further discussion
of this issue. However, we preliminary find that although Choi Moi is
affiliated with QVD, the collapsing criteria are not satisfied and
therefore, Choi Moi has not been collapsed with QVD. Id.
We also preliminarily find that Company B\6\ and QVD are not
affiliated, pursuant to section 771(33) of the Act. Id.
---------------------------------------------------------------------------
\6\ Because Company B's identity is business proprietary, it
cannot be disclosed in this notice. See Affiliation and Collapsing
Memo for further information.
---------------------------------------------------------------------------
United States Entities
We preliminarily find that QVD and QVD USA LLC (``QVD USA'') are
affiliated pursuant to section 771(33) of the Act. Id.
Although the Department received relevant information from QVD USA
regarding its relationship with Customer A\7\ on August 21, 2006, ten
days prior
[[Page 53393]]
to the deadline to issue the preliminary results, the Department was
unable to consider this information for these preliminary results of
review. For the final results of review, however, the Department will
fully consider the information submitted by QVD USA on August 21, 2006,
and possibly request additional information on the relationship with
QVD USA and Customer A. For these preliminary results, the Department
will include QVD USA's sales to Customer A in the margin calculation
for QVD. However, in the event the Department finds Customer A and QVD
USA affiliated, the Department intends to request the relevant sales to
the first unaffiliated U.S. customer after such finding. If parties
fail to provide such data, the Department may apply facts available,
with an adverse inference, to QVD USA's CEP sales to Customer A for the
final results of this review.
---------------------------------------------------------------------------
\7\ Because Customer A's identity is business proprietary, it
cannot be disclosed in this notice. See Memorandum from Julia
Hancock, Case Analyst, to Alex Villanueva, Program Manager, Import
Administration, Subject: 2nd Administrative Review of Certain Frozen
Fish Fillets from the Socialist Republic of Vietnam: Preliminary
Results Analysis Memo for QVD Food Company, (August 31, 2006) (``QVD
Analysis Memo'') for further information.
---------------------------------------------------------------------------
On February 14, 2006, QVD stated that it was affiliated with
Beaverstreet Fisheries Inc. (``BSF'') and provided a CEP sales database
which contained the sales from BSF to the first unaffiliated U.S.
customer. For these preliminary results, the Department is treating QVD
USA and BSF as affiliated entities and will characterize BSF sales' as
CEP sales in the margin calculation for QVD for these preliminary
results. However, the Department notes that there is insufficient time
to evaluate whether the claim of affiliation properly fulfills the
statutory criteria of section 771(33) of the Act. Accordingly, the
Department intends to request further information regarding QVD USA's
affiliation with BSF, which may affect the use of these sales and the
margin calculation in the final results of this review. The Department
also intends to request information on the sales from QVD USA to BSF.
Separate Rates Determination
In the less-than-fair-value (``LTFV'') investigation and the first
administrative review for this Order, the Department treated Vietnam as
a non-market economy (``NME'') for antidumping purposes. It is the
Department's policy to assign all exporters of the merchandise subject
to review that are located in NME countries a single antidumping duty
rate unless an exporter can demonstrate an absence of governmental
control, both in law (de jure) and in fact (de facto), with respect to
its export activities. To establish whether an exporter is sufficiently
independent of governmental control to be entitled to a separate rate,
the Department analyzes the exporter using the criteria 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 in the 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''). Under the
separate rates criteria established in these cases, the Department
assigns separate rates to NME exporters only if they can demonstrate
the absence of both de jure and de facto governmental control over
their export activities.
Absence of De Jure Control
Evidence supporting, though not requiring, a finding of the absence
of de jure governmental control over export activities includes: (1) An
absence of restrictive stipulations associated with an individual
exporter's business and export licenses; (2) any legislative enactments
decentralizing control of companies; and (3) any other formal measures
by the government decentralizing control of companies. See Sparklers,
56 FR at 20589.
In the LTFV investigation for this case, the Department granted
separate rates to the four mandatory respondents, Cataco, Cafatex,
Mekonimex, and QVD, and two of the separate rate respondents, Afiex and
Navico. 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) and accompanying Issues and Decision Memorandum at
Comments 5 and 6 (``LTFV FFF Final Determination''). Additionally, in
the first administrative review of this case, the Department did not
grant a separate rate to the other separate rate respondent, Phan Quan,
because it stopped participating in that review. See Notice of
Preliminary Results and Partial Rescission of Antidumping Duty
Administrative Review: Certain Frozen Fish Fillets from the Socialist
Republic of Vietnam, 70 FR 54007 (September 13, 2005) (``1\st\ Review
Prelim''). However, 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 12441 (March 13, 1998).
In this review only QVD submitted complete responses to the
separate rates section of the Department's NME questionnaire. The
evidence submitted by QVD includes government laws and regulations on
corporate ownership, business licenses, and narrative information
regarding its company's operations and selection of management. The
evidence provided by QVD supports a finding of a de jure absence of
governmental control over its export activities because: (1) There are
no controls on exports of subject merchandise, such as quotas applied
to, or licenses required for, exports of the subject merchandise to the
United States; and (2) the subject merchandise does not appear on any
government list regarding export provisions or export licensing.
Absence of De Facto Control
The absence of de facto governmental 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 its questionnaire responses, QVD submitted evidence indicating
an absence of de facto governmental control over its export activities.
Specifically, this evidence indicates that: (1) The company sets its
own export prices independent of the government and without the
approval of a government authority; (2) the company retains the
proceeds from its sales and makes independent decisions regarding the
disposition of profits or financing of losses; (3) the 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
manager is selected by the board of directors or company employees, and
the general manager appoints the deputy managers and the manager of
each department; and (5) foreign currency does not need to be sold to
the government. Therefore, the Department has preliminarily found that
QVD has established primae facie that it qualifies for a separate rate
under the criteria established by Silicon Carbide and Sparklers.
[[Page 53394]]
As discussed below, the Department is not granting the other three
mandatory respondents, Cataco, Cafatex, and Mekonimex, and the three
separate rate respondents, Afiex, Phan Quan, and Navico, a separate
rate because these respondents withdrew from participating in this
review. As a result, we cannot verify the separate rate information
that Afiex, Cataco, and Phan Quan submitted in their respective
questionnaire responses. Moreover, Afiex, Cataco, and Phan Quan, each
failed to respond to the supplemental questionnaire issued by the
Department that requested clarification on their respective submitted
separate rate information. With respect to Cafatex, Mekonimex, and
Navico, we did not receive separate rate information for consideration
in these preliminary results.
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 sections 782(c)(1) and (e)
of the Act; (C) significantly impedes a proceeding 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 states that ``if the
administrating authority 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 from the administering authority or the
Commission, the administering authority or the Commission (as the case
may be), in reaching the applicable determination under this title, may
use an inference that is adverse to the interests of that party in
selecting from among the facts otherwise available.'' See also
Statement of Administrative Action (``SAA'') accompanying the Uruguay
Round Agreements Act (``URAA''), H.R. Rep. No. 103-316 at 870 (1994).
In the instant review, three of the mandatory respondents, (i.e.,
Cataco, Cafatex, and Mekonimex), the three separate rate respondents,
(i.e., Navico, Afiex and Phan Quan), and four other companies under
review, (i.e., Antesco, Anhaco, Binh Dinh, and Vinh Long),
significantly impeded our ability to complete this administrative
review pursuant to section 751 of the Act, and one mandatory
respondent, Cataco, significantly impeded our ability to impose the
correct antidumping duties, as mandated by section 731 of the Act. As
discussed below, we preliminarily find that each company's failure to
cooperate with the Department to the best of their ability in
responding to the Department's request for information warrant the use
of adverse facts available (``AFA'') in determining dumping margins for
their sales of merchandise subject to this Order.
Mekonimex and Cafatex
As discussed in the ``Case History'' above, on January 17, 2006,
the Department issued questionnaires to Mekonimex and Cafatex. The
deadlines for Mekonimex and Cafatex to file a response to Section A of
the questionnaire were February 7, 2006, and February 14, 2006,
respectively. The Department did not receive a questionnaire response
from either company. Instead, Mekonimex submitted two letters on
February 15, 2006, stating that it was not going to participate and was
withdrawing from the review. Cafatex faxed a letter, in response to the
Department's February 16, 2006, letter of Cafatex's non-response, on
February 21, 2006, stating that it was not going to participate in the
administrative review. Therefore, we find that facts available are
warranted for both Mekonimex and Cafatex in accordance with sections
776(a)(2)(A), (B) and (C) of the Act.
By each company stating that they would no longer participate, both
Mekonimex and Cafatex explicitly impeded this proceeding. Because both
Mekonimex and Cafatex withdrew from the current administrative review
with critical data potentially relevant to separate rates still
outstanding, the Department was prevented from conducting a thorough
separate rates analysis or from verifying either Mekonimex's or
Cafatex's information. Because both Cafatex and Mekonimex did not
respond to the Department's NME questionnaire, the Department has no
information on the record with which to calculate an antidumping margin
or determine if either is eligible for a separate rate in this
proceeding. Therefore, we find that both Mekonimex and Cafatex have not
demonstrated that each is entitled to a separate rate and thus, each is
deemed to be included in the Vietnam-wide entity. By withdrawing from
this administrative review over a month after the Department's
established deadline, which was January 6, 2006, rather than submitting
a response to the Department's NME questionnaires, both Mekonimex and
Cafatex have failed to cooperate to the best of their ability in this
proceeding. Accordingly, since both Mekonimex and Cafatex significantly
impeded the proceeding and failed to cooperate to the best of their
ability, the application of AFA is appropriate, pursuant to section
776(b) of the Act.
Cataco
During the first administrative review, the Department found Cataco
had entered into an reimbursement agreement with Customer B.\8\ See
Memorandum from Julia Hancock, Case Analyst, to Alex Villanueva,
Program Manager, Import Administration, Subject: 2\nd\ Administrative
Review of Certain Frozen Fish Fillets from the Socialist Republic of
Vietnam: Preliminary Results Analysis Memo for Can Tho Agricultural and
Animal Products Import Export Company (``Cataco''), (August 31, 2006)
(``Cataco Analysis Memo''); 1\st\ Supplemental Section C Questionnaire
to Cataco, (March 20, 2006) at Attachment 2 (Memorandum to the File,
from Alex Villanueva, Program Manager, NME Office 9, RE: Certain Frozen
Fish Fillets from the Socialist Republic of Vietnam: Verification
Report Change, (March 13, 2006)). Specifically, the Department noted
that these reimbursement ``agreements stated that Cataco would
reimburse any antidumping duties {on basa and tra{time} exceeding
X,''\9\ and that these reimbursement ``agreements did not specify an
expiration date.'' See 1\st\ Supplemental Section C Questionnaire to
Cataco, at Attachment 2. A day after the Department made this
discovery, Cataco withdrew from verification. Accordingly, Cataco
received AFA in the final results of the first administrative review
because of its termination of verification and as part of the adverse
inference, the Department determined that ``the reimbursement
verification findings should be applied to Cataco for cash deposit and
assessment purposes.'' See Notice of Final Results of the First
Administrative Review: Certain Frozen Fish Fillets from the Socialist
Republic of Vietnam, 71 FR 14170 (March 21, 2006) and accompanying
Issues and Decisions Memorandum at Comments 1 and 2 (``1\st\ AR FFF
Final'').
---------------------------------------------------------------------------
\8\ Because this information is business proprietary, please see
Cataco Analysis Memo for further information on Customer B.
\9\ Because this information is business proprietary, please see
Cataco Analysis Memo.
---------------------------------------------------------------------------
In this administrative review, Cataco admitted from the onset that
it sold subject merchandise under other commercial names, including
``frozen grouper'' and ``frozen seafood.'' See Cataco's Quantity and
Value
[[Page 53395]]
Questionnaire Response, (September 30, 2005) at 1-2; Cataco's Section A
Questionnaire Response, (February 10, 2006) at Exhibit A-1. However, on
June 1, 2006, the Department placed on the record entry packages from
U.S. Customs Border and Protection (CBP) of all entries, classified as
HTS 304206033, 304206043, 304206057, 304206070, 304206096, that were
manufactured by Cataco and entered into the United States during the
POR. A review of the entry packages showed a discrepancy between
Cataco's reported quantity and value (``Q&V'') of sales of subject
merchandise under other commercial names, ``frozen grouper'' and
``frozen seafood,'' and the Q&V of its CBP entries of ``frozen
grouper'' to Customer B. See Cataco's Section A Questionnaire Response
at Exhibit A-1; Cataco's 2\nd\ Supplemental Section A and C
Questionnaire, (June 14, 2006) at 12-13 (``Cataco's 2\nd\
Questionnaire''). Moreover, the Department noted that CBP issued a
Notice of Request for Information and a Notice of Action to Cataco's
Customer B that certain entries needed to be reclassified as subject
merchandise. See Cataco's 2\nd\ Questionnaire, at 13; Memorandum to the
File, from Julia Hancock, Case Analyst, Subject: 2\nd\ Administrative
Review of Certain Frozen Fish Fillets from the Socialist Republic of
Vietnam (``Vietnam''): Customs Data for Can Tho Agricultural and Animal
Products Import Export Company, (June 1, 2006). Based on the apparent
discrepancies with Cataco's reported Q&V of sales of subject
merchandise under other commercial names, and other issues, including
Cataco's affiliate and reimbursement of antidumping duties, the
Department issued a supplemental questionnaire to Cataco on June 14,
2006, which was due on July 5, 2006.
On July 3, 2006, Cataco submitted a letter to the Department that
it would not be submitting a response to Cataco's 2\nd\ Questionnaire.
In the letter, Cataco also stated that it was ``withdrawing from the
current administrative review for all issues except that of
reimbursement of antidumping duties.'' See Cataco's Letter to the
Department, RE: June 14, 2006, Supplemental Questionnaire, (July 3,
2006) at 1-2. However, on July 19, 2006, the Department issued a letter
to Cataco stating that Cataco could not partially withdraw from this
administrative review. By granting Cataco's partial withdrawal, the
Department would have allowed Cataco to ``control the results of the
administrative review by {only{time} granting partial information'' on
reimbursement. See Krupp Stahl A.G., et. al vs. United States, 822 F.
Supp 789, 792 (CIT 1993). Accordingly, the Department granted Cataco a
final opportunity to submit a full response to Cataco's 2\nd\
Questionnaire by July 26, 2006.
On July 26, 2006, Cataco submitted a letter to the Department
stating that it had never entered into a ``reimbursement agreement''
with its U.S. customer, Valley Fresh, and that it would not be
submitting a response to the entirety of Cataco's 2\nd\ Questionnaire.
Additionally, Cataco submitted a June 28, 2006, letter from its
customer, Valley Fresh. However, the Department rejected Cataco's July
26, 2006, letter as containing untimely, new information, pursuant to
section 351.301(b)(2) of the Department's regulations, because Valley
Fresh's letter had previously been rejected as new information. See
Letter from the Department to Matthew McConkey, (August 1, 2006) at 1-
2. Specifically, the deadline for submitting factual information was
June 1, 2006, and as such, Valley Fresh's letter was received twenty-
seven days after the deadline.
Instead of resubmitting its letter without the letter from Valley
Fresh, Cataco submitted a letter on August 3, 2006, that contained this
submission. In its August 3, 2006, letter, Cataco stated that it was
including the letter from Valley Fresh because it was ``directly
relevant to the {reimbursement{time} questions raised'' in the
Department's June 14, 2006, supplemental questionnaire. See Letter from
Alex Villanueva, Program Manager, Import Administration, to Matthew
McConkey, (August 8, 2006) at 2. After review of Cataco's letter, the
Department issued a letter to Cataco requesting that it resubmit its
August 3, 2006, letter without the attached submission from Valley
Fresh. Specifically, the Department noted the reimbursement questions
from Cataco's 2\nd\ Questionnaire, requested that Cataco provide
information on its commercial relationships with specific importers,
not Valley Fresh. Accordingly, the Department continued to find that
the letter from Valley Fresh was new information and requested that
Cataco resubmit its August 3, 2006, letter without the letter from
Valley Fresh by August 11, 2006. The Department did not receive a
response from Cataco on August 11, 2006.
Based upon Cataco's refusal to submit a full response to Cataco's
2\nd\ Questionnaire, the Department finds that Cataco failed to provide
the information in a timely manner and in the form requested and
significantly impeded this proceeding, pursuant to sections
776(a)(2)(B) and 776(a)(2)(C) of the Act. Specifically, the Department
twice granted Cataco the opportunity to submit a full response to
Cataco's 2nd Questionnaire. Cataco decided not to: (1) submit a
response to Cataco's 2\nd\ Questionnaire, but rather attempt to
partially withdraw from this review except with respect to
reimbursement; and (2) respond to the entirety of Cataco's 2\nd\
Questionnaire except regarding those questions on reimbursement.
Additionally, the Department notes that statements submitted by Cataco
on reimbursement were incomplete because Cataco did not submit
information requested on the specific importers, including Cataco's
Customer B. See Cataco's 2\nd\ Questionnaire, at 22-23. Accordingly,
the Department finds that Cataco failed to provide a full response to
Cataco's 2\nd\ Questionnaire in a timely manner. Moreover, the
Department finds that Cataco has significantly impeded this proceeding
by picking and choosing the questions that it would respond to from
Cataco's 2\nd\ Questionnaire. Specifically, antidumping law ``does not
permit a party to pick and choose information it wishes to present'' to
the Department. See Brother Industries, Ltd. vs. United States, 771 F.
Supp. 374, 383 (CIT 1991). Furthermore, the questions that Cataco
refused to answer, specifically questions regarding reimbursement from
Customer B and the discrepancies in Cataco's reported sales of ``frozen
grouper'' and ``frozen seafood,'' needed to be answered in order for
the Department to calculate a margin for Cataco for these preliminary
results. Because Cataco refused to submit a full response to Cataco's
2\nd\ Questionnaire, the application of facts available is warranted,
pursuant to sections 776(a)(2)(B) and 776(a)(2)(C) of the Act.
Further, 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
[[Page 53396]]
previous review, or any other information placed on the record. See
section 776(b) of the Act.
For these preliminary results, the Department finds that Cataco has
failed to cooperate to the best of its ability. Specifically, the
Department finds that Cataco did not respond to the Department's
request for clarification on certain issues, including its reported
sales of ``frozen grouper'' and ``frozen seafood'' and whether it
reimbursed certain importers, as requested in Cataco's 2\nd\
Supplemental Questionnaire. See Nippon Steel Corp. v. United States,
337 F. 3d 1373, 1377 (Fed. Cir. 2003) (``Nippon Steel''). Because
Cataco refused to answer the entirety of Cataco's 2\nd\ Supplemental
Questionnaire, the Department finds that Cataco has failed to cooperate
to the best of its ability, pursuant to section 776(b) of the Act.
As an adverse inference, the Department is assigning to Cataco's
sales of subject merchandise an individual rate of 80.88 percent, which
is the highest established rate on the record of this proceeding, and,
we note, the rate applied to Cataco in the first administrative review.
See 1\st\ AR FFF Final, 71 FR 14170 at Comments 1 and 2. During the
course of this administrative review, Cataco was unable to provide
information regarding the reimbursement agreements, found at the
verification of the first administrative review, which had no
expiration date, and were not still in effect during this
administrative review. Therefore, inclusive in our adverse inference is
a presumption that Cataco continued to reimburse antidumping duties
during this POR.
While it would be consistent with the Department's normal practice
for Cataco to be subject to the same rate as all other exporters that
are part of the Vietnam-Wide Entity, because Cataco failed to cooperate
to the best of its ability and significantly impeded this proceeding,
and because as AFA, the Department presumes Cataco's agreement to
reimburse its importer(s) continued throughout this POR, Cataco is
receiving the individual rate of 80.88 percent. The Department finds
that, for cash deposit purposes, it must take into account the
reimbursement provision and assign Cataco an individual rate for future
entries. Reimbursement, however, is necessarily exporter-importer
specific, and is treated as a unique adjustment. Moreover, the
reimbursement adjustment is exogenous to the normal calculation of the
dumping margin. Therefore, in order to properly account for
reimbursement, the Department has adjusted Cataco's cash deposit and
assessment rates, but not applied the adjustment to the rest of the
Vietnam-Wide Entity. Consequently, the cash deposit rate assigned to
Cataco for these preliminary results is 80.88 percent. See Cataco
Analysis Memo.
ANTESCO, Anhaco, Binh Dinh, and Vinh Long
We note, as mentioned in the ``Case History'' section above, the
Department initiated this administrative review with respect to 29
companies, including ANTESCO, Anhaco, Binh Dinh, and Vinh Long. On
September 14, 2005, we issued a Q&V questionnaire to all of the
companies identified in the notice of initiation. See Initiation
Notice. On February 7, 2006, the Department rescinded, in part, the
review on 18 of the 29 companies, but noted that 11 companies,
including ANTESCO, Anhaco, Binh Dinh, and Vinh Long, were still subject
to review. See Partial Rescission and Extension of Preliminary Results.
Further, each of these companies identified in our notice of rescission
did not respond to our September 14, 2005, Q&V questionnaire nor did
these companies respond to the Department's second Q&V questionnaire
issued to these companies on October 6, 2006. The Department placed
information on the record confirming the delivery of the first and
second Q&V questionnaire to each company. See Memorandum to the File,
through Cindy Robinson, Acting Program Manager, from Julia Hancock,
Case Analyst, Subject: Certain Frozen Fish Fillets from the Socialist
Republic of Vietnam (``Vietnam''): Initial Questionnaires Timeline,
(September 28, 2005); Memorandum to the File, through Alex Villanueva,
Program Manager, from Julia Hancock, Case Analyst, Subject: Certain
Frozen Fish Fillets from the Socialist Republic of Vietnam
(``Vietnam''): 2\nd\ Q&V Questionnaire Timeline, (November 9, 2005).
Because these four companies were non-responsive to the
Department's two requests for Q&V information, the Department finds
that they are not entitled to a separate rate. Additionally, by neither
responding to the Department's first nor second Q&V questionnaire, each
company failed to provide critical information to be used for the
Department's respondent selection process. Therefore, pursuant to
sections 776(a)(2)(A)(B) and (C), the Department finds that facts
available is appropriate. In addition, pursuant to section 776(b) of
the Act, the Department may apply adverse facts available if it finds a
respondent has failed to cooperate by not acting to the best of its
ability to comply with a request for information from the Department.
By failing to respond to the Department's first and second Q&V
questionnaire, ANTESCO, Anhaco, Binh Dinh, and Vinh Long have failed to
act to the best of their ability in this segment of the proceeding.
Moreover, because ANTESCO, Anhaco, Binh Dinh, and Vinh Long did not
participate in the respondent selection exercise, the Department did
not send them a questionnaire and was unable to determine whether or
not they qualified for a separate rate. Therefore, ANTESCO, Anhaco,
Binh Dinh, and Vinh Long are not eligible to receive a separate rate
and will be part of the Vietnam-wide entity, subject to the Vietnam-
wide rate.
Afiex
Between February and April 2006, the Department issued two
supplemental questionnaires to Afiex regarding their response to
section A of the Department's NME questionnaire. On July 7, 2006, the
Department issued a third supplemental section A questionnaire to
Afiex. However, on July 28, 2006, Afiex submitted a letter stating that
it was not submitting a response and was withdrawing from this
administrative review. Therefore, pursuant to sections 776(a)(2)(A)(B)
and (C) of the Act, the Department finds that facts available is
appropriate.
Because Afiex failed to submit a questionnaire response critical
data potentially relevant to separate rates remain. Therefore, the
Department was prevented from conducting a thorough separate rates
analysis of Afiex's information. Therefore, we find that Afiex has not
demonstrated that it is entitled to a separate rate and is thus deemed
to be included in the Vietnam-wide entity. Moreover, Afiex has failed
to cooperate to the best of its ability. Accordingly, since Afiex both
significantly impeded the proceeding and failed to cooperate to the
best of its ability, the application of AFA is appropriate, pursuant to
sections 776(a)(2)(A) and (b) of the Act.
Navico
As discussed in the ``Case History'' section above, on January 18,
2006, the Department sent section A of the Department's NME
questionnaire to Navico. The deadline for Navico to file a response to
section A of the NME questionnaire was February 14, 2006, but the
Department did not receive a response. Between February 16 and 27,
2006, the Department issued two letters to Navico that it had not
received a section A response and requested that Navico either submit a
response or a
[[Page 53397]]
letter stating that it was not going to participate. On March 6, 2006,
Navico notified the Department via email that it was not going to
participate and was withdrawing from the administrative review.
Therefore, we find that facts available are warranted for Navico in
accordance with section 776(a)(2)(A)(B) and (C).
Because Navico failed to submit a questionnaire response, critical
data relevant to separate rates remain. Therefore, the Department was
prevented from conducting a thorough separate rates analysis of
Navico's information. Accordingly, we find that Navico has not
demonstrated that it is entitled to a separate rate and thus, is deemed
to be included in the Vietnam-wide entity. Moreover, Navico has failed
to cooperate to best of its ability by withdrawing from this
administrative review over two months after the Department's
established deadline, which was January 6, 2006. Because Navico has
both significantly impeded this proceeding and failed to cooperate to
the best of its ability, the Department finds that the application of
AFA is appropriate, pursuant to sections 776(a)(2)(a) and (b) of the
Act.
Phan Quan
Between January and March 2006, the Department issued two
questionnaires to Phan Quan on Section A of the Department's NME
questionnaire. However, on April 26, 2006, Phan Quan submitted a letter
stating that it was not submitting a response to the Department's March
28, 2006, supplemental questionnaire and was withdrawing from this
administrative review. Therefore, pursuant to sections 776(a)(2)(A)(B)
and (C) of the Act, the Department finds that facts available is
appropriate.
Because Phan Quan failed to submit a questionnaire response,
critical data potentially relevant to separate rates remain. Therefore,
the Department was prevented from conducting a thorough separate rates
analysis of Phan Quan's information. Therefore, we find that Phan Quan
has not demonstrated that it is entitled to a separate rate and is thus
deemed to be included in the Vietnam-wide entity. Moreover, Phan Quan
has failed to cooperate to the best of its ability. Accordingly, since
Phan Quan both significantly impeded the proceeding and failed to
cooperate to the best of its ability, the application of AFA is
appropriate, pursuant to sections 776(a)(2)(A) and (b) of the Act.
Vietnam-wide Entity
Because the Vietnam-wide entity (including Cafatex, Mekonimex,
Navico, Phan Quan and Afiex) has failed to cooperate to the best of its
ability in providing the requested information, we find it appropriate,
in accordance with sections 776(a)(2)(A) and (B), as well as section
776(b), of the Act, to assign total AFA to the Vietnam-wide entity. By
doing so, we ensure that the companies that are part of the Vietnam-
wide entity will not obtain a more favorable result by failing to
cooperate than had they cooperated fully in this review.
Section 776(a)(2) of the Act provides that, if an interested party
or any other person (A) withholds information that has been requested
by the administering authority, or (B) fails to provide such
information by the deadlines for the submission of the information or
in the form and manner requested, subject to subsections (c)(1) and (e)
of section 782 of the Act, the Department shall, subject to section
782(d) of the Act, use the facts otherwise available in reaching the
applicable determination under this title. Furthermore, under section
782(c) of the Act, a Respondent has a responsibility not only to notify
the Department if it is unable to provide the requested information but
also to provide a full explanation as to why it cannot provide the
information and suggest alternative forms in which it is able to submit
the information. Because these four companies did not establish their
entitlement to a separate rate and failed to provide requested
information, we find that, in accordance with sections 776(a)(2)(A) and
(B) of the Act, it is appropriate to base the Vietnam-wide margin in
this review on facts available. See Final Results of Antidumping Duty
Administrative Review for Two Manufacturers/ Exporters: Certain
Preserved Mushrooms from the People's Republic of China, 65 FR 50183,
50184 (August 17, 2000).
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 the
party as the 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
SAA accompanying the URAA, H. Doc. No. 103-316, at 870 (1994). Section
776(b) of the Act authorizes the Department to use, as AFA, information
derived from the petition, the final determination in the LTFV
investigation, any previous administrative review, or any other
information placed on the record.
Section 776(b)(4) of the Act permits the Department to use as AFA
information derived in the LTFV investigation or any prior review.
Thus, in selecting an AFA rate, the Department's practice has been to
assign Respondents, who fail to cooperate with the Department's
requests for information, the highest margin determined for any party
in the LTFV investigation or in any administrative review. See
Stainless Steel Plate in Coils from Taiwan; Preliminary Results and
Rescission in Part of Antidumping Duty Administrative Review, 67 FR
5789 (February 7, 2002). As AFA, we are assigning the Vietnam-wide
entity (which includes Cafatex, Mekonimex, Navico, Phan Quan and Afiex)
the 66.34 percent which is the rate calculated in this review for QVD
as this rate now replaces the Vietnam-wide entity rate as the highest
rate available.
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 factors of production (``FOP''),
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 factors of production, the Department shall
utilize, to the extent possible, the prices or costs of FOPs in one or
more market-economy countries that are at a level of economic
development comparable to that of the NME country and are significant
producers of comparable merchandise. The sources of the surrogate
values we have used in this investigation are discussed under the
``Normal Value'' Section below.
As discussed in the ``Separate Rates'' section, the Department
considers Vietnam to be an NME country. The Department has treated
Vietnam as an NME country in all previous antidumping proceedings. 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. None of the parties to this
proceeding has contested such treatment. Accordingly, we treated
Vietnam as an NME country for purposes of this review and calculated
NV, pursuant to section 773(c) of the Act, by valuing the FOPs in a
surrogate country.
The Department determined that Bangladesh, Pakistan, India,
Indonesia, and Sri Lanka are countries comparable to Vietnam in terms
of economic development. See Memorandum from
[[Page 53398]]
Ron Lorentzen, Director, Office of Policy, to Alex Villanueva, Program
Manager, China/NME Group, Office 9: Antidumping Administrative Review
of Certain Frozen Fish Fillets (``Frozen Fish'') from the Socialist
Republic of Vietnam: Request for a List of Surrogate Countries,
(December 16, 2005) (``Surrogate Country List''). We select an
appropriate surrogate country 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)
(``Policy Bulletin''). In this case, we have found that Bangladesh is a
significant producer of comparable merchandise, is at a similar level
of economic development pursuant to 773(c)(4) of the Act, and has
publically available and reliable data. See Memorandum to the File,
through James C. Doyle, Office Director, Office 9, Import
Administration, and Alex Villanueva, Program Manager, Office 9, from
Julia Hancock, Case Analyst, Subject: 2\nd\ Antidumping Duty
Administrative Review of Certain Frozen Fish Fillets from the Socialist
Republic of Vietnam: Selection of a Surrogate Country, (August 1, 2006)
(``Surrogate Country Memo''). 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 or Indonesian sources.
Fair Value Comparisons
To determine whether sales of the subject merchandise by QVD to the
United States were made at prices below NV, we compared the company's
export prices (``EP'') or constructed export prices (``CEP'') to NV, as
described in the ``Export Price,'' ``Constructed Export Price,'' and
``Normal Value'' sections of this notice, below.
Export Price
For QVD's EP sale, we used 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
(``FOB'') foreign port price to the first unaffiliated purchaser in the
United States. For this 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.
Constructed Export Price
In accordance with section 772(b) of the Act, we used CEP
methodology when the first sale to an unaffiliated purchaser occurred
after importation of the merchandise into the United States. We
calculated CEP for certain U.S. sales made QVD through its U.S.
affiliates to unaffiliated U.S. 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 Memorandum to the File,
through Alex Villanueva, Program Manager, Office 9, from Julia Hancock,
Case Analyst, Subject: 2\nd\ Administrative Review of Certain Frozen
Fish Fillets from the Socialist Republic of Vietnam (``Vietnam''):
Surrogate Values for the Preliminary Results, (August 31, 2006)
(``Surrogate Value Memo''). Where applicable, we used the actual
reported expense for those movement expenses provided by market economy
(``ME'') suppliers and paid for in a ME currency.
Zero-Priced Transactions
During the course of this review, QVD reported a number of zero-
priced transactions to their U.S. customers. See QVD's Supplemental
Section C Response, at 8 and Exhibit S-9. An analysis of QVD's section
C database reveals that QVD made a number of zero-priced transactions
with customers that had purchased the same merchandise in commercial
quantities. See QVD's Analysis Memo at Attachment I. In the 2\nd\
Review of Tables and Chairs, the Department included zero-priced
transactions in the margin calculation stating that the record
demonstrated that: (1) The respondent provided many pieces of the same
product, indicating that these ``samples'' did not primarily serve for
evaluation or testing of the merchandise; (2) the respondent provided
significant numbers of the same product to its U.S. customer while that
customer was purchasing that same product; (3) the respondent provided
``samples'' to the same customers to whom it was selling the same
products in commercial quantities; (4) the respondent acknowledged that
it gave these products at zero price to its U.S. customers (already
purchasing the same items) to sell to their own customers. See Notice
of Final Results of Antidumping Duty Administrative Review: Folding
Metal Tables and Chairs from the People's Republic of China, 71 FR 2905
(January 18, 2006) and accompanying Issues and Decisions Memorandum at
Comment 4 (``2\nd\ Review of Tables and Chairs'').
The Federal Circuit has not required the Department to exclude
zero-priced or de minimis priced sales from its analysis, but rather,
has defined a sale as requiring ``both a transfer of ownership to an
unrelated party and consideration.'' See NSK Ltd. v. United States, 115
F.3d 965, 975 (Fed. Cir. 1997). The CIT in NSK Ltd. v. United States
stated that it saw ``little reason in supplying and re-supplying and
yet re-supplying the same product to the same customer in order to
solicit sales if the supplies are made in reasonably short periods of
time,'' and that ``it would be even less logical to supply a sample to
a client that has made a recent bulk purchase of the very item being
sampled by the client.'' See NSK Ltd v. United States, 217 F. Supp. 2d
1291, 1311-1312 (CIT 2002). Furthermore, the Courts have consistently
ruled that the burden rests with a respondent to demonstrate that it
received no consideration in return for its provision of purported
samples. See Zenith Electronics Corp. v. United States, 988 F. 2d 1573,
1583 (Fed. Cir. 1993) (explaining that the burden of evidentiary
production belongs ``to the party in possession of the necessary
information''). See Tianjin Machinery Import & Export Corp. v. United
States, 806 F. Supp. 1008, 1015 (CIT 1992) (``The burden of creating an
adequate record lies with respondents and not with {the
Department{time} .'') (citation omitted). Moreover, ``{e{time} ven
where the Department does not ask a respondent for specific information
that would enable it to make an exclusion determination in the
respondent's favor, the respondent has the burden of proof to present
the information in the first place with its request for exclusion.''
See Notice of Final Results of Antidumping Duty Administrative Reviews:
Ball Bearings and Parts Thereof from France, Germany, Italy,
[[Page 53399]]
Japan, Singapore, and the United Kingdom, 70 FR 54711 (September 16,
2005), and accompanying Issues and Decisions Memorandum at Comment 8
(citing NTN Bearing Corp. of America. v. United States, 997 F. 2d 1453,
1458 (Fed. Cir. 1993)).
An analysis of QVD's section C computer sales listings reveals that
QVD provided zero-priced merchandise to the same customers to whom it
was selling or had sold the same products in commercial quantities,
with the exception of a few of QVD's customers, who did not make any
purchases of subject merchandise during the POR. See QVD Preliminary
Analysis Memorandum at Attachment I. Consequently, based on the facts
cited above, the guidance of past CIT decisions, and consistent with
the Department's prior case precedent, for the preliminary results of
this review, we have not excluded zero-priced transactions from the
margin calculation of this case for QVD, with the exception of certain
sales that QVD made to new customers that did not purchase any subject
merchandise during the POR.
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, pursuant to sections 773(c)(3) and (4) of the Act and 19 CFR
351.408(c).
As the basis for NV, QVD provided FOPs used in each of the stages
for processing frozen fish fillets. However, QVD also reported that it
is an integrated producer, (i.e., it farms and processes the whole fish
input), but that its affiliated farming facility, Choi Moi, did not
supply the majority of the whole fish used during the production of the
subject merchandise. See QVD's Section D Questionnaire Response, (March
8, 2006) at 3. In response to a supplemental questionnaire, QVD also
provided factors of production information used in each of the
production stages, from the fingerling stage to the frozen fish fillet
processing stage, separately. Although QVD reported the inputs used to
produce the main input to the processing stage (whole fish), for the
purposes of these preliminary results, we are not valuing those inputs
when calculating NV. Rather, our NV calculation begins with a valuation
of the fish input (whole fish) used to produce the merchandise under
investigation.
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. If the NME respondent is an integrated producer, we take
into account the factors utilized in each stage of the production
process. For example, in a previous aquaculture case, Shrimp from PRC
Final, one of the respondents, Zhanjiang Guolian, was a fully
integrated firm, and the Department valued both the farming and
processing FOPs because Zhanjiang Guolian bore all the costs related to
growing the shrimp. See Notice of Final Determination at Less Than Fair
Value: Certain Frozen and Canned Warmwater Shrimp from the People's
Republic of China, 69 FR 70997 (December 8, 2004) and accompanying
Issues and Decision Memorandum at Comment 9(e) (``Shrimp from PRC
Final'').
Unlike Zhanjiang Guolian in Shrimp from the PRC Final, QVD is not a
fully integrated firm. Although QVD is affiliated with Choi Moi, QVD
purchased the whole fish input from Choi Moi. Accordingly, QVD did not
bear all the costs related to growing the fish input. Therefore, we
will apply a surrogate value to the whole fish input that QVD purchased
from Choi Moi, rather than valuing the factors of production incurred
by Choi Moi in calculating QVD's NV.
To calculate NV, QVD's reported per-unit factor quantities were
valued 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 United States Court of Appeals for the Federal Circuit
(``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
(``IMF'')'s International Financial Statistics. We excluded from the
surrogate country import data used in our calculations imports from
South Korea, Thailand, Indonesia and India 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 (March 15, 2005)
and accompanying Issues and Decision Memorandum at Comment 4.
Additionally, we disregarded prices from NME countries and imports that
were labeled as originating from an ``unspecified'' country were
excluded from the average value. The Department excluded these imports
because it could not ascertain whether they were not from either an NME
country or a country with general export subsidies. Finally, we also
disregarded prices from North Korea, as the Department has in a
previous case. See Notice of Final Results of Antidumping Duty
Administrative Review: Chrome-Plated Lug Nuts from the People's
Republic of China, 61 FR 58514 (November 15, 1996). 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 Import Administration's website at 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, 2004, through July 31, 2005:
------------------------------------------------------------------------
Weighted-Average
Manufacturer/Exporter Margin (Percent)
------------------------------------------------------------------------
Cataco.............................................. 80.88
QVD................................................. 66.34
Vietnam-wide Rate\10\............................... 66.34
------------------------------------------------------------------------
\10\ The Vietnam-wide rate includes Mekonimex, Cafatex, Afiex, Navico,
Phan Quan, ANTESCO, Anhaco, Binh Dinh and Vinh Long.
Public Comment
The Department will disclose to parties to 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
[[Page 53400]]
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 QVD, the only respondent receiving a
calculated rate in this review, we will calculate importer-specific
duty assessment rates on the basis of the ratio of the total amount of
antidumping duties calculated for the examined sales to the total
volume of the examined sales for that importer. For Cataco, to ensure
proper assessment, the Department has adjusted the total volume of the
examined sales for Cataco as outlined in the Cataco Analysis Memo.
Where the assessment rate is de minimis, we will instruct CBP to assess
duties on all entries of subject merchandise by that importer.
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, no cash deposit will be required); (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 66.34 percent, which was calculated in this
review for QVD; 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 publication of the final results of the
next administrative review.
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 31, 2006.
David M. Spooner,
Assistant Secretaryfor Import Administration.
[FR Doc. E6-15003 Filed 9-8-06; 8:45 am]
BILLING CODE 3510-DS-S