Daily Rules, Proposed Rules, and Notices of the Federal Government
On August 2, 2010, the Department published a notice of an opportunity to request an administrative review of the
On September 22, 2010, the Department initiated the August 1, 2009, through July 31, 2010, antidumping duty administrative review on certain frozen fish fillets from Vietnam.
On January 7, 2011, the Department issued a letter to all interested parties informing them of its decision to select the two largest exporters of subject merchandise during the POR, based on U.S. Customs and Borders Protection (“CBP”) import data, Vinh Hoan and QVD, (“Respondents”), as mandatory respondents.
On January 7, 2011, the Department issued the antidumping questionnaire. Between January 28, 2011, and July 13, 2011, Vinh Hoan and QVD submitted responses to the original and supplemental sections A, C, and D questionnaires.
On March 29, 2011, and May 19, 2011, the Department extended the deadlines for parties to file surrogate country comments and surrogate value data.
On April 13, 2011, the Department published in the
On August 4, 2011, the Department partially rescinded the administrative review with respect to five companies.
On April 20, 2011, Vinh Hoan and QVD requested revocation on the basis that they did not sell subject merchandise for less than NV consecutively for three years. However, pursuant to 19 CFR 351.222(e), the request for revocation must be made during the anniversary month. The anniversary month for this review was August 2010, making these requests 232 days late. On May 4, 2011, Petitioners submitted comments urging the Department to reject these requests as untimely. On May 19, 2011, Vinh Hoan and QVD responded to Petitioners' comments. As these requests were made 232 days after the anniversary month, the Department is not considering Vinh Hoan and QVD's revocation requests.
As discussed above, in this administrative review we limited the selection of respondents to be individually examined using CBP import data.
Pursuant to 19 CFR 351.213(d)(3), the Department has preliminarily determined that four companies made no shipments of subject merchandise during the POR of this administrative review, (1) IDI; (2) CL-Fish; (3) THIMACO; and (4)NTSF. On October 5, 2010, the Department received no-shipment certifications from IDI, CL-Fish, THIMACO, and NTSF. However, according to entry statistics obtained from CBP, and placed on the record, IDI and THIMACO had an entry of subject merchandise during the POR.
The Department issued no-shipment inquiries to CBP requesting any information for merchandise manufactured and shipped by either IDI or THIMACO during the POR. The Department did receive a response from CBP regarding THIMACO, however, both of IDI and THIMACO's entries have already been reviewed in the recently completed new shipper reviews.
A designation as a non-market economy (“NME”) remains in effect until it is revoked by the Department.
The Department considers the following
Although the Department has previously assigned a separate rate to all of the companies eligible for a separate rate in this review, 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.
In this review, in addition to the two mandatory respondents, Anvifish Co., Ltd., Anvifish JSC, Acomfish, Bien Dong Seafood, Binh An, CASEAMEX, ESS LLC, East Sea Seafoods Joint Venture Co., Ltd., Hiep Thanh, South Vina, and Vinh Quang, submitted complete separate rate certifications and applications. The evidence submitted by these companies includes government laws and regulations on corporate ownership, business licenses, and narrative information regarding the companies' operations and selection of management. The evidence provided by these companies supports a finding of a
The absence of
In this review, in addition to the two mandatory respondents, Anvifish Co., Ltd., Anvifish JSC, Acomfish, Bien Dong Seafood, Binh An, CASEAMEX, ESS LLC, East Sea Seafoods Joint Venture Co., Ltd., Hiep Thanh, South Vina, and Vinh Quang, submitted evidence indicating an absence of
In this review there are 11 companies that are not presently selected for individual examination.
For this administrative review, the Department has calculated positive margins for one mandatory respondent, QVD. Accordingly, consistent with our practice for these preliminary results, the Department has preliminarily established a margin for the separate rate respondents based on the rate calculated for one of the mandatory respondents, QVD. The rate established for the separate rate respondents is a per-unit rate of $0.56 dollars per kilogram. Entities receiving this rate are identified by name in the “Preliminary Results of Review” section of this notice.
The product covered by the order is frozen fish fillets, including regular, shank, and strip fillets and portions thereof, whether or not breaded or marinated, of the species
In every case conducted by the Department involving Vietnam, Vietnam has been treated as an NME country. In accordance with section 771(18)(C)(i) of the Act, any determination that a foreign country is an NME country shall remain in effect until revoked by the administering authority.
On February 1, 2011, the Department sent interested parties a letter setting a deadline to submit comments on surrogate country selection and information pertaining to valuing factors of production (“FOPs”). Between May 10, 2011, and July 29, 2011, Vinh Hoan, QVD, the Vietnam Association of Seafood Exporters and Producers (“VASEP”), and Petitioners submitted surrogate country comments, surrogate value data, and rebuttal comments.
When the Department is investigating imports from an NME country, section 773(c)(1) of the Act directs it to base NV, in most circumstances, on the NME producer's FOPs, valued in a surrogate market economy (“ME”) country or countries considered to be appropriate by the Department. In accordance with section 773(c)(4) of the Act, in valuing the FOPs, the Department shall utilize, to the extent possible, the prices or costs of FOPs in one or more ME countries that are: (1) At a level of economic development comparable to that of the NME country; and (2) significant producers of comparable merchandise.
Regarding economic comparability, Respondents argue that the Philippines is not economically comparable to Vietnam. However, as explained in our list of surrogate countries, the Department considers Bangladesh, the Philippines, Indonesia, India, Sri Lanka, and Pakistan all comparable to Vietnam in terms of economic development.
As we have stated in prior administrative review determinations, there is no world production data of
After applying the first two selection criteria, if more than one country remains, it is the Department's practice to select an appropriate surrogate country based on the availability and reliability of data from those countries.
VASEP placed the Bangladeshi Department of Agriculture Marketing, Ministry of Agriculture, pangas price data (“DAM data”) on the record.
Petitioners placed the
The Department placed Indonesian price and quantity data from the United Nations Food and Agriculture Organization's Fisheries Global Information System (“FIGIS data”).
VASEP placed the Present Status of the Pangasius, Pangasianodon-Hypophthalmus Farming in Andhra Pradesh, India (“Pangasius Study”), on the record.
When evaluating surrogate value data, the Department considers several factors including whether the surrogate value is publicly available, contemporaneous with the POR, represents a broad market average, from an approved surrogate country, tax and duty-exclusive, and specific to the input. There is no hierarchy; it is the Department's practice to carefully consider the available evidence in light of the particular facts of each industry when undertaking its analysis.
First, we note that the Pangasius Study regarding India is a “first attempt”
We note that both Petitioners and Respondents claim that both Bangladesh and the Philippines'
With respect to the DAM data,
As noted above, Petitioners have raised concerns regarding the public availability of the DAM data. The Department issued letters to both the Bangladeshi Department of Agriculture Marketing and the Philippines Bureau of Agricultural Statistics, requesting among other things, more information regarding the publicly availability of both the DAM data and the
As a result of the uncertainty regarding public availability of the DAM data, we find that Bangladesh does not provide the best available information with respect to valuation of whole live fish for purposes of these preliminary results. Therefore, the FIGIS data and the
Based on the analysis above, we find that the FIGIS data represent a more reliable broad market average for purposes of valuing whole live fish. Therefore, for the preliminary results, the Department will select Indonesia as the primary surrogate country. We recognize, with respect to determining surrogate financial ratios, that we have no useable financial statements on the record at this time with respect to Indonesia. As Bangladesh satisfies the remaining criteria for selection of surrogate country and because the record contains numerous sources from Bangladesh, we find it a suitable secondary surrogate country. Thus, we intend to rely on financial statements from Bangladesh, the secondary surrogate country, for purposes of these preliminary results. The record contains three financial statements from Bangladesh, including two of which are from vertically integrated companies, matching the production experience of the mandatory respondents.
We hereby invite parties to submit additional comments to be considered for the final results.
Section 771(33) of the Act provides that:
The following persons shall be considered to be `affiliated' or `affiliated persons':
(A) Members of a family, including brothers and sisters (whether by the whole or half blood), spouse, ancestors, and lineal descendants;
(B) Any officer or director of an organization and such organization;
(D) Employer and employee;
(E) Any person directly or indirectly owning, controlling, or holding with power to vote, 5 percent or more of the outstanding voting stock or shares of any organization and such organization;
(F) Two or more persons directly or indirectly controlling, controlled by, or under common control with, any person;
(G) Any person who controls any other person and such other person.
Additionally, section 771(33) of the Act stipulates that: “For purposes of this paragraph, a person shall be considered to control another person if the person is legally or operationally in a position to exercise restraint or direction over the other person.”
Finally, according to 19 CFR 351.401(f)(1) and (2), two or more companies may be treated as a single entity for antidumping duty purposes if: (1) The producers are affiliated, (2) the producers have production facilities for similar or identical products that would not require substantial retooling of either facility in order to restructure manufacturing priorities, and (3) there is a significant potential for manipulation of price or production.
In the final results of the sixth antidumping duty administrative review, the Department determined that Vinh Hoan was affiliated with Vinh Hoan Feed 1 Company (“Vinh Hoan Feed”), Vinh Hoan USA, Van Duc Food Export Joint Company (“Van Duc”), and Van Duc Tien Giang (“VD TG”). The Department also determined that Vinh Hoan, Van Duc, and VD TG should be treated as a single entity.
Based on evidence submitted by Vinh Hoan in this administrative review, the Department continues to find that Vinh Hoan is affiliated with Vinh Hoan Feed, Vinh Hoan USA, Van Duc, and VD TG, pursuant to section 771(33) of the Act.
In the final results of the fifth antidumping duty administrative review, the Department determined that QVD and QVD USA are affiliated pursuant to sections 771(33)(A), (B), (E), (F), and (G) of the Act.
To determine whether sales of the subject merchandise made by Vinh Hoan and QVD to the United States were at prices below NV, we compared each company's export price (“EP”) or constructed export price (“CEP”), where appropriate, to NV, as described below.
For Vinh Hoan's EP sales, we used the EP methodology, pursuant to section 772(a) of the Act, because the first sale to an unaffiliated purchaser was made prior to importation. To calculate EP, we deducted foreign inland freight, foreign cold storage, foreign brokerage and handling, foreign containerization, and international ocean freight from the starting price (or gross unit price), in accordance with section 772(c) of the Act.
For Vinh Hoan's and QVD's CEP sales, we used the CEP methodology when the first sale to an unaffiliated purchaser occurred after importation of the merchandise into the United States. To calculate CEP, we made adjustments to the gross unit price, where applicable, for billing adjustments, rebates, foreign inland freight, international freight, foreign cold storage, foreign containerization, foreign brokerage and handling, 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 carrying 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 surrogate values from Descartes Carrier Rate Retrieval Database (“Descartes”) Web site.
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 Vinh Hoan and QVD pursuant to sections 773(c)(3) and (4) of the Act and 19 CFR 351.408(c).
In accordance with 19 CFR 351.408(c)(1), the Department will normally use publicly available information to value the FOPs, but when a producer sources an input from a ME country and pays for it in an ME currency, the Department may value the factor using the actual price paid for the input. During the POR, Vinh Hoan reported that it purchased certain inputs, and international freight, from an ME suppliers and paid for the inputs in a ME currency.
In this case, unless case-specific facts provide adequate grounds to rebut the Department's presumption, the Department will use the weighted-average ME purchase price to value the input. Alternatively, when the volume of an NME firm's purchases of an input from ME suppliers during the period is below 33 percent of its total volume of purchases of the input during the period, but where these purchases are otherwise valid and there is no reason to disregard the prices, the Department will weight-average the ME purchase price with an appropriate SV according to their respective shares of the total volume of purchases, unless case-specific facts provide adequate grounds to rebut the presumption.
As the basis for NV, Vinh Hoan and QVD provided FOPs used in each of the stages for producing frozen fish fillets. The Department's general policy, consistent with section 773(c)(1) of the Act, is to value the FOPs that a respondent uses to produce the subject merchandise.
To calculate NV, the Department valued Vinh Hoan's and QVD's reported per-unit factor quantities using publicly available Indonesian, Bangladeshi, and Philippine surrogate values. Indonesia is our primary surrogate country source from which to obtain data to value inputs, and when data were not available from Indonesia, we used Bangladeshi, and Philippine, sources. In selecting surrogate values, we considered the quality, specificity, and contemporaneity of the available values. As appropriate, we adjusted the value of material inputs to account for delivery costs. Specifically, we added surrogate freight costs to surrogate values using the reported distances from the Vietnam port to the Vietnam factory or from the domestic supplier to the factory, where appropriate. This adjustment is in accordance with the decision of the CAFC in
In accordance with the
Additionally, we disregarded prices from NME countries. Finally, imports that were labeled as originating from an “unspecified” country were excluded from the average value, because the Department could not be certain that they were not from either an NME country or a country with general export subsidies. For further detail,
Section 733(c) of the Act, provides that the Department will value the FOPs in NME cases using the best available information regarding the value of such factors in a ME country or countries considered to be appropriate by the administering authority. The Act requires that when valuing FOPs, the Department utilize, to the extent possible, the prices or costs of FOPs in one or more ME countries that are (1) At a comparable level of economic development and (2) significant producers of comparable merchandise.
Previously, the Department used regression-based wages that captured the worldwide relationship between per capita GNI and hourly manufacturing wages, pursuant to 19 CFR 351.408(c)(3), to value the respondent's cost of labor. However, on May 14, 2010, the Court of Appeals for the Federal Circuit (“CAFC”), in
On June 21, 2011, the Department revised its methodology for valuing the labor input in NME antidumping proceedings.
In this review, however, the Department has selected Indonesia as the surrogate country. Because Indonesia does not report labor data to the ILO under Chapter 6A, for these preliminary results, we are unable to use ILO's Chapter 6A data to value the Respondents' labor wage and instead will use industry-specific wage rate using earnings or wage data reported under ILO's Chapter 5B. The Department finds the two-digit description under ISIC-Revision 3 (“Manufacture of Food Products and Beverages”) to be the best available information on the record because it is specific to the industry being examined, and is therefore derived from industries that produce comparable merchandise. Accordingly, relying on Chapter 5B of the Yearbook, the Department calculated the labor input using labor data reported by Indonesia to the ILO under Sub-Classification 15 of the ISIC-Revision 3 standard, in accordance with Section 773(c)(4) of the Act. For these preliminary results, the calculated wage rate is 4,298.06 Indonesian Rupiahs per hour. A more detailed description of the wage rate calculation methodology is provided in the Surrogate Value Memo.
Where necessary, the Department made currency conversions into U.S. dollars, in accordance with section 773A(a) of the Act, based on the exchange rates in effect on the dates of the U.S. sales, as certified by the Federal Reserve Bank.
As a result of our review, we preliminarily find that the following margins exist for the period August 1, 2009, through July 31, 2010.