Daily Rules, Proposed Rules, and Notices of the Federal Government
On October 3, 2011, the Department initiated the eighth administrative review of fish fillets from Vietnam with respect to 32 companies.
Because of the large number of exporters involved in the administrative review, the Department limited the number of respondents individually examined pursuant to section 777A(c)(2) of the Tariff Act of 1930, as amended (the “Act”), and selected Vinh Hoan and Anvifish as mandatory respondents.
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
Consistent with the Department's practice, we examined the
We found that the sales by the New Shipper Respondents were made on
Pursuant to section 351.213(d)(3) of the Department's regulations, we have preliminarily determined that seven companies made no shipments of subject merchandise during the POR—Bien Dong Seafood Company Ltd., International Development & Investment Corporation, Cuu Long Fish Joint Stock Company, Thien Ma Seafood Co., Ltd., East Sea Seafoods Limited Liability Company
Between November 7, 2011 and November 15, 2011, the New Shipper Respondents notified the Department that they made no entries during the POR other than the entries under review in the aligned new shipper reviews. Consequently, we are preliminarily rescinding the administrative review with respect to the No Shipment Companies and the New Shipper Respondents.
In every case conducted by the Department involving Vietnam, Vietnam has been treated as a non-market (“NME”) country.
There is a rebuttable presumption that all companies within Vietnam are subject to government control, and thus, should be assessed a single antidumping duty rate. It is the Department's standard policy to assign all exporters of the merchandise subject to review in NME countries a single rate unless an exporter can affirmatively demonstrate an absence of government control, both in law (
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
In this review, in addition to the two mandatory respondents and the New Shipper Respondents, An Giang Agriculture and Food Import-Export Joint Stock Company (“AFIEX”), An Giang Fisheries Import & Export Joint Stock Company (“Agifish”), Asia Commerce Fisheries Joint Stock Company (“Acomfish”), Binh An Seafood Joint Stock Company (“Binh An”), Cadovimex II Seafood Import-Export and Processing Joint Stock Company (“Cadovimex II”), Hiep Thanh Seafood Joint Stock Company (“Hiep Thanh”), Hung Vuong Corporation (“Hung Vuong”), Nam Viet Corporation (“NAVICO”), NTSF Seafoods Joint Stock Company (“NTSF”), QVD Food Company Ltd. (“QVD”), Saigon Mekong Fishery Co., Ltd. (“SAMEFICO”), Southern Fisheries Industries Company Ltd. (“South Vina”) and Vinh Quang Fisheries Corporation (“Vinh Quang”) (collectively, the “Separate Rate Respondents”) submitted complete separate rate certifications or 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 and the New Shipper Respondents, the Separate Rate Respondents submitted evidence indicating an absence of
As noted above, there are 13 Separate Rate Respondents not selected for individual examination. The statute and the Department's regulations do not address the establishment of a rate to be applied to individual companies not selected for examination when the Department has limited its examination in an administrative review pursuant to section 777A(c)(2) of the Act. Generally we have looked to section 735(c)(5) of the Act, which provides instructions for calculating the all-others rate in an investigation, for guidance when calculating the rate for respondents not selected for individual examination. Section 735(c)(5)(A) of the Act instructs that we do not calculate an all-others rate using any zero or
In this review, we have calculated weighted-average dumping margins of zero or de
Upon initiation of the administrative review, we provided the opportunity for all companies upon which the review was initiated to complete either the separate-rate application or certification. The separate-rate application and certification were available at:
We have preliminarily determined that three
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 (“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 FOPs, the Department shall utilize, to the extent possible, the prices or costs of FOPs in one or more ME countries that are (a) at a level of economic development comparable to that of the NME country and (b) are significant producers of comparable merchandise.
The Department considers the countries on the Surrogate Country List—Bangladesh, India, Indonesia, Nicaragua, Pakistan and the Philippines—to be comparable to Vietnam in terms of economic development.
As we have stated in prior 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.
An Phu placed the Bangladeshi Department of Agriculture Marketing, Ministry of Agriculture, online
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, is tax and duty-exclusive, and is 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.
We note that the values submitted in these reviews are identical to the values submitted in the last administrative review with the exception of the online DAM data, which has been updated to match the POR. An analysis of these values may be found in the
To determine whether sales of the subject merchandise made by Vinh Hoan, Anvifish and the New Shipper Respondents 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 and the New Shipper Respondents' 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 Anvifish'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.
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 the Respondents, pursuant to sections 773(c)(3) and (4) of the Act and section 351.408(c) of the Department's regulations.
In accordance with section 351.408(c)(1) of the Department's regulations, the Department will normally use publicly available information to value the FOPs. However, when a producer sources an input from a ME country and pays for it in an ME currency, the Department may value the FOP using the actual price paid for the input. During the POR, Vinh Hoan and Anvifish reported that they 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
As the basis for NV, Vinh Hoan, Anvifish and the New Shipper Respondents 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 the Respondents' reported per-unit factor quantities using publicly available Indonesian, Bangladeshi, Philippine and Indian surrogate values. As noted above, Bangladesh is the surrogate country source from which to obtain data to value inputs, and when data were not available from Bangladesh, we used Indonesian, Indian 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 773(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 (a) at a comparable level of economic development and (b) significant producers of comparable merchandise.
On June 21, 2011, the Department revised its methodology for valuing the labor input in NME antidumping proceedings.
As noted above, the Department has selected Bangladesh as the surrogate country for the preliminary results. Because Bangladesh does not report labor data to the ILO, we are unable to use ILO's Chapter 6A data to value the Respondents' labor wage. However, the record does contain a labor wage rate for fishery workers in Bangladesh, published by the Bangladesh Bureau of Statistics. The Department finds this labor wage rate to be the best available information on the record. This data is publicly available, represents a broad market average, specific to the fishery industry, and was collected from an official Bangladeshi government source in the surrogate country that the Department has selected. Moreover, we note this source has been used in other cases where Bangladesh has been selected as the surrogate country.
The Department's criteria for choosing surrogate companies are the availability of contemporaneous financial statements, comparability to the respondent's experience, and publicly available information.
As a result, to value the surrogate financial ratios for OH, SG&A and profit, for integrated respondents, the Department averaged the 2010-2011 financial statements of Apex Foods Limited (“Apex”) and Fine Foods Co., Ltd. (“Fine Foods”). Apex and Fine Foods are integrated producers of comparable merchandise, frozen seafood, in Bangladesh. To value the surrogate financial ratios for OH, SG&A and profit, for non-integrated respondents, the Department used the 2010-2011 financial statement of Gemini Seafood Limited (“Gemini”). Gemini is a non-integrated producer of comparable merchandise, frozen seafood, in Bangladesh.
Although the Petitioners have argued that the Department should not calculate financial ratios using the Gemini financial statement because the record contains evidence that Gemini received export subsidies, we note that in past cases the Department, consistent with long-standing practice, has stated that we will not reject the use of a factor value that is allegedly subsidized unless the Department has previously found the program to be a countervailable subsidy in a countervailing duty proceeding.
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.
On August 24, 2011, and August 26, 2011, Vinh Hoan and QVD, respectively, requested revocation of the antidumping duty order with respect to their sales of subject merchandise, pursuant to section 351.222(e) of the Department's regulations. These requests were accompanied by certifications, pursuant to section 351.222(e)(1) of the Department's regulations that (a) Vinh Hoan and QVD have sold the subject merchandise at not less than NV for at least three consecutive years and that they will not sell the merchandise at less than NV in the future, and (b) Vinh Hoan and QVD sold subject merchandise to the United States in commercial quantities for a period of at least three consecutive years. Vinh Hoan and QVD also agreed to immediate reinstatement of the
Pursuant to section 751(d) of the Act, the Department “may revoke, in whole or in part” an antidumping duty order upon completion of a review under section 751(a) of the Act. In determining whether to revoke an antidumping duty order in part, the Department considers (a) whether the company in question has sold subject merchandise at not less than NV for a period of at least three consecutive years, (b) whether during each of the three consecutive years for which the company sold the merchandise at not less than NV, it sold the merchandise to the United States in commercial quantities, and (c) the company has agreed in writing to its immediate reinstatement in the order, as long as any exporter or producer is subject to the order, if the Department concludes that the company, subsequent to revocation, sold the subject merchandise at less than NV.
We have preliminarily determined that the request from Vinh Hoan meets all of the criteria under section 351.222(e)(1) of the Department's regulations. As noted in the “
Based on our examination of the sales data submitted by Vinh Hoan, we preliminarily determine that it sold the subject merchandise in the United States in commercial quantities in during each of the consecutive years cited by Vinh Hoan to support its request for revocation.
Furthermore, we preliminarily determine, pursuant to section 751(d) of the Act and section 351.222(b)(2) of the Department's regulations, that the application of the antidumping duty order with respect to Vinh Hoan is no longer warranted because (a) Vinh Hoan had a zero or
We have preliminarily determined that the request from QVD does not meet all of the criteria under section 351.222(e)(1) of the Department's regulations. As noted in the “
As a result of our review, we preliminarily find that the following margins exist for the period August 1, 2010, through July 31, 2011.