Certain Frozen Fish Fillets From the Socialist Republic of Vietnam: Final Results of the First Administrative Review

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On September 13, 2005, the Department of Commerce (the “Department”) published in the Federal Register the preliminary results of the first administrative review of the antidumping duty order on certain frozen fish fillets from the Socialist Republic of Vietnam (“Vietnam”). See Certain Frozen Fish Fillets From the Socialist Republic of Vietnam: Preliminary Results and Preliminary Partial Rescission of Antidumping Duty Administrative Review, 70 FR 54007 (September 13, 2005) (“Preliminary Results”). We gave interested parties an opportunity to comment on the Preliminary Results. As a result, we made changes to the dumping margin calculations for the final results. See Memorandum to the File from Irene Gorelik, Analyst, through Alex Villanueva, Program Manager; Analysis for the Final Results of Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Vinh Hoan Company Ltd. (“Vinh Hoan”), dated March 13, 2006 (“Vinh Hoan Final Analysis Memo”); see also Memorandum to the File from Javier Barrientos, Analyst, through Alex Villanueva, Program Manager; Analysis for the Final Results of Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Can Tho Agricultural and Animal Products Import Export Company (“CATACO”), dated March 13, 2006 (“CATACO Final Analysis Memo”).

EFFECTIVE DATE:

March 21, 2006.

FOR FURTHER INFORMATION CONTACT:

Irene Gorelik (Vinh Hoan) or Javier Barrientos (CATACO), 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) 482-6905 or (202) 482-9068, respectively.

SUPPLEMENTARY INFORMATION:

Case History

The Preliminary Results for this administrative review were published on September 13, 2005. Since the Preliminary Results, the following events have occurred:

Submission of Final Surrogate Value Information

On September 30, 2005, Vinh Hoan submitted publicly available information to be used in valuing surrogate factors of production for the final results. On October 3, 2005, the Department extended the deadline for the submission of publicly available information for the final results per Petitioners'¹ extension request dated September 30, 2005. On October 17, 2005, Petitioners submitted publicly available information for the Department's consideration in the final results. On October 17, 2005, H&N Foods International (“H&N”), an interested party, submitted publicly available information for the final results. On October 27, 2005, Petitioners submitted rebuttal comments to H&N's October 17, 2005, submission of publicly available information.

Verification

On September 30, 2005, the Department issued verification outlines to Vinh Hoan and CATACO for the on-site verifications scheduled for October 10, 2005, through October 14, 2005. On October 6, 2005, Petitioners submitted pre-verification comments for Vinh Hoan and CATACO regarding the sales and factors of production verifications scheduled for October 10, 2005, through October 14, 2005. The Department conducted its verification of Vinh Hoan's questionnaire responses from October 10, 2005, through October 14, 2005. The Department began its verification of CATACO's questionnaire responses on October 10, 2005. On October 12, 2005, CATACO terminated the verification and informed the Department that it no longer wished to participate in this administrative review. On October 24, 2005, Vinh Hoan submitted verification exhibits per its extension request dated September 30, 2005. On November 1, 2005, the Department issued its verification report for CATACO. On November 14, 2005, the Department issued its verification report for Vinh Hoan. On January 9, 2006, the Department issued a memorandum clarifying a statement in its verification report for CATACO.

Case Briefs

On October 6, 2005, and November 10, 2005, the Department extended the deadline for the submission of case briefs. On November 15, 2005, the Department issued a memorandum inviting comments from interested parties regarding the expected nonmarket economy wage rate. On November 29, 2005, January 6, 2006, and January 11, 2006, the Department further extended the deadline for the submission of case briefs due to our extension of the final results of this review. On January 20, 2006, Petitioners filed an extension request for case brief submissions concerning CATACO. On January 20, 2006, the Department granted Petitioners' limited extension request. On January 24, 2006, Petitioners, Vinh Hoan and H&N submitted case briefs concerning Vinh Hoan. On January 27, 2006, Petitioners submitted case briefs concerning CATACO. On February 3, 2006, Petitioners, Vinh Hoan, and H&N submitted rebuttal briefs concerning both respondents. In its February 3, 2006, rebuttal brief, Vinh Hoan stated that Petitioners included new information in their January 24, 2005, case brief concerning Vinh Hoan. On February 9, 2005, the Department notified Petitioners that they must remove the new information from their January 24, 2006, case brief concerning Vinh Hoan. On February 10, 2006, Petitioners resubmitted their case brief concerning Vinh Hoan absent the unsolicited and untimely new information included in their January 24, 2006, case brief.

Hearing

On October 13, 2005, Petitioners submitted a request for a public hearing. On January 20, 2005, Petitioners withdrew their October 13, 2005, request for a public hearing.

Extension of the Final Results

On December 2, 2005, the Department extended the time limit for completion of the final results of the instant administrative review. See Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Extension of Time Limit for the Final Results of the First Antidumping Duty Administrative Review, 70 FR 72294 (December 2, 2005).

CATACO Business Proprietary Information (“BPI”)

On October 13, 2005, CATACO formally filed its request for the removal and/or destruction of its BPI. On October 21, 2005, Petitioners filed a request to deny CATACO's request to either return or destroy its BPI. On January 18, 2006, the Department issued a memorandum regarding its intention to remove and destroy CATACO's BPI documents placed on the record for this administrative review. On January 23, 2006, the Department sent CATACO a letter stating that we removed its BPI submission from the record.

On January 17, 2006, the Department placed entry summaries received from U.S. Customs and Border Protection (“CBP”) on the record. On January 18, 2006, the Department placed certain public information from the second administrative review of certain frozen fish fillets from Vietnam on the record of this proceeding.

Scope of the Order

The product covered by this order is frozen fish fillets, including regular, shank, and strip fillets and portions thereof, whether or not breaded or marinated, of the species Pangasius Bocourti, Pangasius Hypophthalmus (also known as Pangasius Pangasius), and Pangasius Micronemus. Frozen fish fillets are lengthwise cuts of whole fish. 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”).² This order covers all frozen fish fillets meeting the above specification, regardless of tariff classification. Although the HTSUS subheading is provided for convenience and customs purposes, our written description of the scope of the order is dispositive.

Analysis of Comments Received

All issues raised in the case and rebuttal briefs by parties to this proceeding and to which we have responded are listed in the Appendix to this notice and addressed in the Issues and Decision Memorandum (“Final Decision Memo”), which is hereby adopted by this notice. Parties can find a complete discussion of the issues raised in this administrative review and the corresponding recommendations in this public memorandum which is on file in the Central Records Unit (“CRU”), room B-099 of the main Department building. In addition, a copy of the Final Decision Memo can be accessed directly on our Web site at http://ia.ita.doc.gov/. The paper copy and electronic version of the Final Decision Memo are identical in content.

Verification

As provided in section 782(i) of the of the Tariff Act, as Amended (“the Act”), we conducted verification of the information submitted by Vinh Hoan and CATACO for use in our final results. See Memorandum to the File, through, Alex Villanueva, Program Manager, AD/CVD Operations, Office 9, from, Irene Gorelik, Case Analyst, AD/CVD Operations, Office 9, RE: Verification of Sales and Factors of Production for Vinh Hoan Company Ltd. (“Vinh Hoan”) (November 14, 2005) (“Vinh Hoan Verification Report”); see also Memorandum to the File from Alex Villanueva, Program Manager, Verification of Sales and Factors of Production for Can Tho Agricultural and Animal Products Import Export Company (“CATACO”) in the First Administrative Review of Certain Frozen Fish Fillets from the Socialist Republic of Vietnam (November 1, 2005) (“CATACO Verification Report”) and Memorandum to the File from Alex Villanueva, Program Manager, Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Verification Report Correction (January 9, 2006) (“CATACO Verification Report Correction”). For both companies, we used standard verification procedures, including examination of relevant accounting and production records, as well as original source documents provided by the Respondents.

As stated above, the Department began verification of CATACO's sales and factors of production on October 10, 2005. On October 12, 2005, CATACO terminated the verification prior to its scheduled completion. See CATACO Verification Report. See also CATACO Verification Report Correction.

Changes Since the Preliminary Results

Based on a review of the record as well as comments received from parties regarding our Preliminary Results, we have made revisions to the margin calculations for the final results. Specific changes to Vinh Hoan's margin calculation include a revision of the inflator used for truck freight, a recalculation of labor and electricity reported for byproduct production as a result of verification findings, an update to the margin program language merging Vinh Hoan's sales and factors of production datasets, and other changes resulting from our decisions in Comments 5 and 6 of the Final Decision Memo. See Vinh Hoan Final Analysis Memo. See also Memorandum from Irene Gorelik, Case Analyst, through Alex Villanueva, Program Manager, Office 9 and James C. Doyle, Office Director, Office 9, to The File, Antidumping Duty Administrative Review of Certain Frozen Fish Fillets from the Socialist Republic of Vietnam (“Vietnam”): Surrogate Values for the Final Results, dated March 13, 2006 (“Final Factors Memo”). CATACO's margin calculation changes are addressed in Comment 2 of the Final Decision Memo. A full discussion of the calculation methodology is described in CATACO's analysis memorandum. See CATACO Final Analysis Memo at 1.

Adverse Facts Available

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

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 previous review, or any other information placed on the record. See section 776(b) of the Act.

In accordance with sections 776(a)(2)(C) and (D) of the Act, the Department finds that applying facts available is warranted for CATACO because CATACO terminated verification and withdrew its BPI from the record of the instant proceeding, thereby significantly impeding this proceeding and rendering the information submitted unverifiable. For the final results, pursuant to section 776(a)(1) of the Act, we are applying facts otherwise available to CATACO because the necessary information is not available on the record. Furthermore, pursuant to section 776(b) of the Act, the Department has determined that CATACO did not cooperate to the best of its ability to comply with the Department's requests for information during the verification. Therefore, pursuant to section 776(b) of the Act, for the final results, we will apply facts available with an adverse inference, in selecting from among the facts otherwise available, to CATACO because it failed to cooperate to the best of its ability when it terminated verification. We find that for cash deposit purposes the Department must take into account the reimbursement findings at verification and assign CATACO an individual rate for future entries because it would be inappropriate to apply the reimbursement finding to all exporters that are part of the Vietnam-Wide Entity. 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 it failed to cooperate to the best of its ability and withdrew from the proceeding, the Department's additional finding that CATACO agreed to reimburse antidumping duties warrants a different result under these unusual circumstances. A finding of reimbursement is necessarily exporter-importer specific, and is treated as a unique adjustment. Moreover, as we are applying AFA in this instance, the reimbursement adjustment is exogenous to the normal calculation of the dumping margin. In order to properly account for CATACO's reimbursement activities, the Department will adjust CATACO's cash deposit and assessment rates, but not apply the adjustment to the rest of the Vietnam-Wide Entity. In this unique situation in which CATACO terminated verification and where we also found reimbursement of antidumping duties, it is appropriate to assign CATACO a rate inclusive of the Vietnam-Wide Entity rate and the reimbursement adjustment. Consequently, the cash deposit rate assigned to CATACO for these final results is 80.88 percent.⁴ See CATACO Final Analysis Memo at 2-3. See also Final Decision Memo at Comments 1 and 2.

Phan Quan Company (“Phan Quan”)

In the Preliminary Results, the Department assigned total AFA to the Vietnam-Wide Entity, including Phan Quan. The Department did not receive any comments regarding the Vietnam-Wide Entity or Phan Quan. Therefore, for the final results, we continue to apply AFA to the Vietnam-Wide Entity and to treat Phan Quan as part of the Vietnam-Wide Entity.

Final Results of Review

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

Assessment

The Department will determine, and the U.S. Customs and Border Protection (“CBP”) shall assess, antidumping duties on all appropriate entries, pursuant to 19 CFR 351.212(b). We have calculated importer-specific duty assessment rates on the basis of the ratio of the total amount of antidumping duties calculated for the examined sales to the total entered value of the examined sales for each importer as reported by Vinh Hoan and CATACO. In accordance with 19 CFR 351.106(c)(2), we will instruct CBP to liquidate, without regard to antidumping duties, all entries of subject merchandise during the POR for which the importer-specific assessment rate is zero or de minimis (i.e., less than 0.50 percent). To determine whether the per-unit duty assessment rates are de minimis, in accordance with the requirement set forth in 19 CFR 351.106(c)(2), we calculated importer-specific ad valorem ratios based on export prices. We will direct CBP to apply the resulting assessment rates to the entered customs values for the subject merchandise on each of the importer's entries during the review period. The Department will issue appropriate assessment instructions directly to the CBP within 15 days of publication of the final results of this administrative review.

Cash Deposit Requirements

The following cash-deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for each of the reviewed companies that received a separate rate in this review will be the rate listed in the final results of review (except that if the rate for a particular company is de minimis, i.e., less than 0.5 percent, no cash deposit will be required for that company); (2) for previously investigated companies not listed above, the cash deposit rate will continue to be the company-specific rate published for the most recent period; (3) if the exporter is not a firm covered in this review, a prior review, or the original LTFV investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; and (4) the cash deposit rate for all other manufacturers or exporters (including Phan Quan) will be the Vietnam-wide rate of 63.88 percent, as explained in the Final Decision Memo and CATACO Final Analysis Memo. These deposit requirements, when imposed, shall remain in effect until publication of the final results of the next administrative review.

Reimbursement of Duties

This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties has occurred and the subsequent assessment of doubled antidumping duties.

Administrative Protective Orders

This notice also serves as a reminder to parties subject to administrative protective orders (“APO”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.

We are issuing and publishing this administrative review and notice in accordance with sections 751(a)(1) and 777(i) of the Act.

Appendix I - Decision Memorandum

ISSUES FOR THE FINAL RESULTS:

Comment 1: Total Adverse Facts Available (“AFA”) for CATACO

Comment 2: AFA Calculation Methodology

Comment 3: Surrogate Factor Valuations (Whole Fish, Fish Oil, Fish Waste)

Comment 4: Byproduct Offset Cap

Comment 5: Importer-Specific Assessment Rates

Comment 6: Vinh Hoan Verification Clarifications (Byproduct Packing, Capacity, Telephone Communications)