[Federal Register Volume 75, Number 49 (Monday, March 15, 2010)]
[Notices]
[Pages 12206-12217]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-5596]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-552-802]
Certain Frozen Warmwater Shrimp From the Socialist Republic of
Vietnam: Preliminary Results, Partial Rescission, and Request for
Revocation, in Part, of the Fourth 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 warmwater shrimp from the Socialist Republic of Vietnam
(``Vietnam''), covering the period of review (``POR'') of February 1,
2008, through January 31, 2009. As discussed below, we preliminarily
determine that sales have been made below normal value (``NV''). If
these preliminary
[[Page 12207]]
results are adopted in our final results of review, we will instruct
U.S. Customs and Border Protection (``CBP'') to assess antidumping
duties on entries of subject merchandise during the POR for which the
importer-specific assessment rates are above de minimis.
DATES: Effective Date: March 15, 2010.
FOR FURTHER INFORMATION CONTACT: Bobby Wong or Susan Pulongbarit, 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 and (202) 482-0413, respectively.
SUPPLEMENTARY INFORMATION:
General Background
On February 1, 2005, the Department published in the Federal
Register the antidumping duty order on frozen warmwater shrimp from
Vietnam. See Notice of Amended Final Determination of Sales at Less
Than Fair Value and Antidumping Duty Order: Certain Frozen Warmwater
Shrimp From the Socialist Republic of Vietnam, 70 FR 5152 (February 1,
2005) (``Order''). On February 4, 2009, the Department published a
notice of opportunity to request an administrative review of the
antidumping duty order on frozen warmwater shrimp from Vietnam for the
period February 1, 2008, through January 31, 2009. See Antidumping or
Countervailing Duty Order, Finding, or Suspended Investigation;
Opportunity To Request Administrative Review, 74 FR 6013 (February 4,
2009).
From February 23, 2009, through March 2, 2009, we received requests
to conduct administrative reviews from Petitioner,\1\ the Louisiana
Shrimp Association (``LSA''), and certain Vietnamese companies. See
Notice of Initiation of Administrative Reviews and Requests for
Revocation in Part of the Antidumping Duty Orders on Certain Frozen
Warmwater Shrimp From the Socialist Republic of Vietnam and the
People's Republic of China, 74 FR 13178 (March 26, 2009) (``Initiation
Notice''). Among the requests for review, the Department also received
18 requests for revocation. Subsequently, 13 companies withdrew their
requests for revocation, but maintained their request for reviews. See
Revocation section, below.
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\1\ The Ad Hoc Shrimp Trade Action Committee is the Petitioner.
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On March 26, 2009, the Department initiated an administrative
review of 198 producers/exporters of subject merchandise from Vietnam.
See Initiation Notice. On March 26, 2009, the Department posted the
separate rate certification and separate rate application on its Web
site for Vietnamese exporters for whom a review was initiated to
complete and submit to the Department.
On April 8, 2009, and April 24, 2009, the Department received
letters from Binh Anh Seafood (``Binh Anh'') and Vinh Hoan Corporation
(``Vinh Hoan''), respectively, indicating that they made no shipments
of subject merchandise during the POR.
Of the 198 companies/groups upon which we initiated an
administrative review, 23 companies submitted separate-rate
certifications, nine companies submitted separate-rate applications,
and two companies stated that they did not export subject merchandise
to the United States during the POR. The Department addresses the
review status of each grouping of companies below.
Respondent Selection
On March 26, 2009, the Department placed on the record data
obtained from CBP with respect to the selection of respondents,
inviting comments from interested parties. See Letter from the
Department to Interested Parties, Regarding: CBP data for Respondent
Selection. On April 6, and April 7, 2009, Petitioner and Respondents
provided comments on the Department's respondent selection methodology.
On June 11, 2009, the Department issued its respondent selection
memorandum. Based upon section 777A(c)(2)(B) of the Tariff Act of 1930
as amended, (``the Act''), the Department selected Minh Phu Seafood
Corporation (and its affiliates Minh Qui Seafood Co., Ltd., and Minh
Phat Seafood Co., Ltd.) (collectively ``The Minh Phu Group''), and Nha
Trang Seaproduct Company (``Nha Trang Seafoods'') for individual
examination (hereinafter ``mandatory respondents'') because they were
the largest exporters, by volume, of subject merchandise during the
POR. See June 11, 2009, Memorandum to John M. Anderson, through James
Doyle, from Scot T. Fullerton and Bobby Wong, regarding: Selection of
Respondents for the 2008-2009 Antidumping Duty Administrative Review of
Frozen Warmwater Shrimp From the Socialist Republic of Vietnam
(``Respondent Selection Memo'').
Questionnaires
On June 16, 2009, the Department issued its non-market economy
questionnaire to the mandatory respondents. From July 10, 2009, through
February 26, 2010, the Department received responses from mandatory
respondents from the non-market economy questionnaire and subsequent
supplemental questionnaires. From July 8, 2009, to August 24, 2009, the
Department received voluntary responses to the Department's non-market
economy questionnaire from Camau Frozen Seafood Processing Import
Export Corporation (``CAMIMEX''), Grobest & I-Mei Industrial (Vietnam)
Co., Ltd. (``Grobest''), and Minh Hai Joint-Stock Seafoods Processing
Company (``Seaprodex Minh Hai'').
Duty Absorption
On April 21, and April 24, 2009, Petitioner, the LSA, and the
American Shrimp Processors Association, respectively, requested that
the Department determine whether the mandatory respondents and numerous
separate-rate respondents had absorbed antidumping duties for U.S.
sales of frozen warmwater shrimp made during the POR. Section 751(a)(4)
of the Act provides for the Department, if requested, to determine
during an administrative review initiated two or four years after
publication of the order, whether antidumping duties have been absorbed
by a foreign producer or exporter, if the subject merchandise is sold
in the United States through an affiliated importer. See also 19 CFR
351.213(j)(1). On February 2, 2010, the Department requested that the
Minh Phu Group and Nha Trang Seafoods, the two mandatory respondents,
provide evidence to demonstrate that their unaffiliated U.S. purchasers
ultimately paid antidumping duties.
In determining whether the antidumping duties have been absorbed by
the mandatory respondents, we presume the duties have been absorbed for
all CEP sales that have been made at less than NV. This presumption can
be rebutted with evidence (e.g., an agreement between the affiliated
importer and unaffiliated purchaser) that the unaffiliated purchaser
paid the full duty ultimately assessed on the subject merchandise. See,
e.g., Certain Stainless Steel Butt-Weld Pipe Fittings From Taiwan:
Preliminary Results of Antidumping Duty Administrative Review and
Notice of Intent To Rescind in Part, 70 FR 39735, 39737 (July 11, 2005)
(unchanged in final results).
On February 17, 2010, the Minh Phu Group filed a response to the
Department's duty absorption questionnaire and provided evidence that
its unaffiliated U.S. purchasers ultimately paid the full duty assessed
on the subject merchandise. The Minh Phu Group provided invoices,
prices paid by the ultimate customers, and financial
[[Page 12208]]
statements on the record showing that the unaffiliated customer paid
the duties during the POR. We conclude that this information
sufficiently demonstrates that the unaffiliated purchasers in the
United States ultimately paid the assessed duties. Therefore, we
preliminarily find that antidumping duties have not been absorbed by
the Minh Phu Group on U.S. sales made through its affiliated importer.
See Letter from Thompson Hine, to the Secretary of Commerce, regarding
Certain Frozen Warmwater Shrimp From Vietnam: Duty Absorption
Allegation in Fourth Administrative Review (POR: 02/01/08-01/31/09),
dated February 17, 2010.
On February 12, 2010, Nha Trang Seafoods filed a response rebutting
the duty absorption presumption. In its response, Nha Trang Seafoods
stated that it was not affiliated with any companies to which it
shipped during the instant POR and that all reported U.S. sales were
export price (``EP'') sales. We preliminarily conclude because Nha
Trang Seafoods did not sell merchandise in the United States through an
affiliated importer, it is not appropriate to make a duty absorption
determination in this segment of the proceeding within the meaning of
section 751(a)(4) of the Act. See Letter from the Minh Phu Group, to
the Secretary of Commerce, regarding Frozen Warmwater Shrimp From the
Socialist Republic of Vietnam: Duty Absorption Allegation in Fourth
Administrative Review (POR: 02/01/08-01/31/09), dated February 12,
2010; see also Agro Dutch Industries Ltd. v. United States, 508 F.3d.
1024, 1033 (Fed. Cir. 2007).
Petitioner also requested that the Department investigate whether
separate-rate respondents had absorbed duties. As explained above,
because of the large number of companies subject to this review, and
given the Department's current resources, the Department selected two
companies as mandatory respondents in this administrative review and
thus only issued its complete questionnaire to these companies. In
determining whether antidumping duties have been absorbed, the
Department requires certain specific data (i.e., U.S. sales data) to
ascertain whether those sales have been made at less than NV. Since
U.S. sales data is only obtained from the complete questionnaire (i.e.,
only mandatory respondents submit U.S. sales data), and the separate-
rate respondents were required only to provide information on their
separate-rate status (i.e., not required to provide any U.S. sales
data), we do not have the information necessary to assess whether the
separate-rate respondents absorbed duties. Accordingly, the separate-
rate respondents were not selected as mandatory respondents and,
therefore, we cannot make duty absorption determinations with respect
to these companies.
Extension of the Preliminary Results
On October 27, 2009, the Department extended the deadline for the
preliminary results until March 1, 2010. See Certain Frozen Warmwater
Shrimp From the Socialist Republic of Vietnam and the People's Republic
of China: Extension of Preliminary Results of Antidumping Duty
Administrative Reviews, 74 FR 55192, (October 27, 2009).
As explained in the February 12, 2010, memorandum from the Deputy
Assistant Secretary for Import Administration, the Department exercised
its discretion to toll deadlines for the duration of the closure of the
Federal Government from February 5, through February 12, 2010. See
Memorandum to the Record from Ronald Lorentzen, DAS for Import
Administration, regarding ``Tolling of Administrative Deadlines as a
Result of the Government Closure During the Recent Snowstorm,'' dated
February 12, 2010. Thus, all deadlines in this segment of the
proceeding have been extended by seven days. The revised deadline for
the preliminary determination of this review is now March 8, 2010.
Scope of the Order
The scope of this order includes certain frozen warmwater shrimp
and prawns, whether wild-caught (ocean harvested) or farm-raised
(produced by aquaculture), head-on or head-off, shell-on or peeled,
tail-on or tail-off,\2\ deveined or not deveined, cooked or raw, or
otherwise processed in frozen form.
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\2\ ``Tails'' in this context means the tail fan, which includes
the telson and the uropods.
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The frozen warmwater shrimp and prawn products included in the
scope of this order, regardless of definitions in the Harmonized Tariff
Schedule of the United States (``HTSUS''), are products which are
processed from warmwater shrimp and prawns through freezing and which
are sold in any count size.
The products described above may be processed from any species of
warmwater shrimp and prawns. Warmwater shrimp and prawns are generally
classified in, but are not limited to, the Penaeidae family. Some
examples of the farmed and wild-caught warmwater species include, but
are not limited to, whiteleg shrimp (Penaeus vannemei), banana prawn
(Penaeus merguiensis), fleshy prawn (Penaeus chinensis), giant river
prawn (Macrobrachium rosenbergii), giant tiger prawn (Penaeus monodon),
redspotted shrimp (Penaeus brasiliensis), southern brown shrimp
(Penaeus subtilis), southern pink shrimp (Penaeus notialis), southern
rough shrimp (Trachypenaeus curvirostris), southern white shrimp
(Penaeus schmitti), blue shrimp (Penaeus stylirostris), western white
shrimp (Penaeus occidentalis), and Indian white prawn (Penaeus
indicus).
Frozen shrimp and prawns that are packed with marinade, spices or
sauce are included in the scope of this order. In addition, food
preparations, which are not ``prepared meals,'' that contain more than
20 percent by weight of shrimp or prawn are also included in the scope
of this order.
Excluded from the scope are: (1) Breaded shrimp and prawns (HTS
subheading 1605.20.10.20); (2) shrimp and prawns generally classified
in the Pandalidae family and commonly referred to as coldwater shrimp,
in any state of processing; (3) fresh shrimp and prawns whether shell-
on or peeled (HTS subheadings 0306.23.00.20 and 0306.23.00.40); (4)
shrimp and prawns in prepared meals (HTS subheading 1605.20.05.10); (5)
dried shrimp and prawns; (6) canned warmwater shrimp and prawns (HTS
subheading 1605.20.10.40); (7) certain dusted shrimp; and (8) certain
battered shrimp. Dusted shrimp is a shrimp-based product: (1) That is
produced from fresh (or thawed-from-frozen) and peeled shrimp; (2) to
which a ``dusting'' layer of rice or wheat flour of at least 95 percent
purity has been applied; (3) with the entire surface of the shrimp
flesh thoroughly and evenly coated with the flour; (4) with the non-
shrimp content of the end product constituting between four and 10
percent of the product's total weight after being dusted, but prior to
being frozen; and (5) that is subjected to IQF freezing immediately
after application of the dusting layer. Battered shrimp is a shrimp-
based product that, when dusted in accordance with the definition of
dusting above, is coated with a wet viscous layer containing egg and/or
milk, and par-fried.
The products covered by this order are currently classified under
the following HTSUS subheadings: 0306.13.00.03, 0306.13.00.06,
0306.13.00.09, 0306.13.00.12, 0306.13.00.15, 0306.13.00.18,
0306.13.00.21, 0306.13.00.24,
[[Page 12209]]
0306.13.00.27, 0306.13.00.40, 1605.20.10.10, and 1605.20.10.30. These
HTSUS subheadings are provided for convenience and for customs purposes
only and are not dispositive, but rather the written description of the
scope of this order is dispositive.
Preliminary Partial Rescission of Administrative Review
As stated above, Vinh Hoan and Binh Anh informed the Department
that they did not export subject merchandise to the United States
during the POR. CBP has not provided any information that contradicts
these companies' claims. Therefore, because the record indicates that
Vinh Hoan and Binh Anh did not sell subject merchandise to the United
States during the POR, we are preliminarily rescinding this
administrative review with respect to the two companies. See 19 CFR
351.213(d)(3).
Vietnam-Wide Entity
Upon initiation of the administrative review, we provided the
opportunity for all companies upon which the review was initiated to
complete either the separate-rates application or certification. The
separate-rate certification and separate-rate applications were
available at: http://ia.ita.doc.gov/nme/nme-sep-rate.html.
As stated above, 108 \3\ additional companies upon which a review
was initiated did not certify or apply for a separate rate. Because the
Department preliminarily determines that there were exports of subject
merchandise under review from Vietnamese producers/exporters that did
not demonstrate their eligibility for separate-rate status, the
Vietnam-wide entity is now under review.
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\3\ See Attachment for a list of these companies.
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Requests for Revocation, in Part
During the request for review period in the instant review,
eighteen respondents \4\ requested revocation from the Order; however
subsequently, twelve of the companies \5\ withdrew their revocation
requests prior to respondent selection. Additionally, on July 31, 2009,
Nha Trang Seafoods withdrew its request for revocation. Five companies
have maintained their request for revocation: the Minh Phu Group,
CAMIMEX, Grobest, Viet Hai Seafood Co., a/k/a Vietnam Fish One So.,
Ltd. (``Fish One''), and Seaprodex Minh Hai (collectively ``revocation
companies''). Of the revocation companies, the Minh Phu Group is a
mandatory respondent, and the remaining four are separate rate
respondents in this proceeding.
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\4\ Camau Frozen Seafood Processing Import Export Corporation
(``CAMIMEX''); Minh Hai Joint-Stock Seafoods Processing Company
(``Seaprodex Minh Hai''), Minh Phu Seafood Corporation (and its
affiliates Minh Qui Seafood Co., Ltd., and Minh Phat Seafood Co.,
Ltd.) (collectively the ``Minh Phu Group''); Cadovimex Seafood
Import-Export and Processing Joint-Stock Company a.k.a. Cai Doi Vam
Seafood Import-Export Company (``CADOVIMEX''); Cafatex Fishery Joint
Stock Corporation (``Cafatex Corp''); Can Tho Agricultural and
Animal Products Import Export Company (``CATACO''); Coastal
Fisheries Development Corporation (``COFIDEC''); Investment Commerce
Fisheries Corporation (``INCOMFISH''); Minh Hai Export Frozen
Seafood Processing Joint-Stock Company (``Minh Hai Jostoco''); Minh
Hai Joint-Stock Seafoods Processing Company (``Seaprodex Minh
Hai''); Ngoc Singh Private Enterprise (``Ngoc Singh Seafoods''); Nha
Trang Seaproduct Company (``Nha Trang Seafoods''); Soc Trang Seafood
Joint Stock Company, a.k.a. Soc Trang Aquatic Products and General
Import Export Company (``STAPIMEX''); Sao Ta Foods Joint Stock
Company (``FIMEX VN''); UTXI Aquatic Products Processing
Corporation, a.k.a. UTXI Aquatic Products Processing Company
(``UTXICO''); Vinh Loi Import Export Company (``VIMEX''); Viet Hai
Seafood Co., Ltd., a.k.a. Vietnam Fish One Co., Ltd. (``Fish One'');
Ca Mau Seafood Joint Stock Company (``SEAPRIMEXCO''); and Grobest &
I-Mei Industrial (Vietnam) Co., Ltd. (``Grobest'').
\5\ Cafatex Corp.; SEAPRIMEXCO; CATACO; COFIDEC; INCOMFISH; Minh
Hai Jostoco; Ngoc Singh Seafoods; STAPIMEX; FINMEX VN; UTXICO;
VIMEX; and CADOVIMEX.
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In its request for revocation, the revocation companies argued that
each has maintained three consecutive years of sales at not less than
normal value. These companies argued that, as a result of its alleged
three consecutive years of no dumping, they are eligible for revocation
under section 751(d)(1) of the Act and section 351.222(b)(2) of the
Department's regulations.
We preliminarily determine not to revoke the Order with respect to
revocation companies that were not individually selected for review.
The Act affords the Department broad discretion to limit the number of
respondents selected for individual review when the large number of
review requests makes the individual calculation of dumping margins for
all companies under review impracticable. Specifically, section
777A(c)(2) of the Act provides that if it is not practicable for the
Department to make individual dumping margin determinations because of
the large number of exporters or producers involved, the Department may
determine margins for a reasonable number of exporters or producers.
Although the Department's regulations set out rules and procedures for
possible revocation of a dumping order, in whole or in part, based on
an absence of dumping, it is silent on the applicability of this
regulation when the Department has limited its examination under
section 777A(c)(2) of the Act. The Department does not interpret the
regulation as requiring it to conduct an individual examination of the
non-selected revocation companies, or a verification of the companies'
data, where, as here, the Department determined to limit its
examination to a reasonable number of exporters in accordance with
section 777A(c)(2)(B), and the non-selected revocation companies were
not selected under this provision. Nothing in the regulation requires
the Department to conduct an individual examination and verification
when the Department has limited its review, under section 777A(c)(2).
As explained above, the non-selected revocation companies were not
selected for individual review because, pursuant to 777A(c)(2)(B) of
the Act, the Department selected the two largest exporters, by volume.
See Respondent Selection Memo. Thus, because we have not selected the
non-selected revocation companies for individual examination, we
preliminarily determine not to revoke the Order with respect to these
companies.
However, the non-selected revocation companies filed timely
separate-rate certifications, as evidence of each company's continued
eligibility for a separate rate. Thus, the Department considers the
non-selected revocation companies to be cooperative respondents
eligible for a separate rate.
Furthermore, with respect to the Minh Phu Group's request for
revocation, a mandatory respondent in the instant review, we
preliminarily determine not to revoke the Order. In its request for
revocation, the Minh Phu Group argued that, with the completion of the
instant review, it will have maintained three consecutive years of
sales at not less than normal value. The Minh Phu Group argued that, as
a result of three consecutive years of sales at not less than normal
value, it is eligible for revocation under section 751(d)(1) of the Act
and section 351.222(b)(2) of the Department's regulations. However, for
these preliminary results, based on sales and production data provided
by the Minh Phu Group, the Department has calculated a (non-de minimis)
positive margin for the Minh Phu Group. Therefore, under 751(d)(1) of
the Act and section 351.222(b)(2), we have preliminarily determined not
to revoke the Order with respect to the Minh Phu Group.
Verification
Pursuant to 19 CFR 351.307(b)(iv), between January 11 and January
21, 2009, the Department conducted a verification of the Minh Phu
Group's sales and factors of production (``FOP''). See Memo to the File
through Scot
[[Page 12210]]
Fullerton, Program Manager, Office 9, Susan Pulongbarit, International
Trade Analyst, ``Verification of the CEP Sales and Factors of
Production Response of the Minh Phu Group in the 2008-09 Administrative
Review of Certain Warmwater Shrimp from the Socialist Republic of
Vietnam'' (``MPG CEP Verification Report''), dated March 8, 2010; see
Memo to the File through Scot Fullerton, Program Manager, Office 9,
Susan Pulongbarit, International Trade Analyst, ``Verification of the
Sales and Factors of Production Response of the Minh Phu Group in the
2008-09 Administrative Review of Certain Warmwater Shrimp from the
Socialist Republic of Vietnam'' (``MPG Verification Report''), dated
March 8, 2010.
During the course of verification, in preparing document packages
for surprise sales traces requested by the Department, counsel noted
several database errors. See MPG CEP Verification Report and MGP
Verification Report. Additionally, we noted instances in which the
reported distances for some FOPs differed from those previously
submitted to the Department. Id. Subsequent to the preliminary results,
the Department intends to request databases with corrections to these
errors.
Non-Market Economy Country Status
In every case conducted by the Department involving Vietnam,
Vietnam has been treated as a non-market economy (``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. See Certain Frozen Fish Fillets
From the Socialist Republic of Vietnam: Notice of Preliminary Results
and Partial Rescission of the Third Antidumping Duty Administrative
Review, 72 FR 53527 (September 19, 2007) (unchanged in final results).
None of the parties to this proceeding have contested such treatment.
Accordingly, we calculated the NV in accordance with section 773(c) of
the Act, which applies to NME countries.
Separate Rates Determination
A designation as an NME remains in effect until it is revoked by
the Department. See section 771(18)(C) of the Act. Accordingly, 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 (de jure) and in fact (de facto),
with respect to exports. To establish whether a company is sufficiently
independent to be entitled to a separate, company-specific rate, the
Department analyzes each exporting entity in an NME country under the
test 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 by the Notice of 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'').
For this administrative review, the Department received a total of
23 separate-rate certifications.\6\ Of those 23 separate-rate
certifications, two were submitted by the mandatory respondents, whose
eligibility for a separate rate was analyzed within their respective
questionnaire responses. The Department analyzed twenty separate-rate
certifications for companies upon which the administrative review was
initiated, but which were not selected for individual examination.
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\6\ For firms previously awarded separate rate status, the
Department allows those firms to file a separate-rate certification,
provided that the company did not undergo changes in status since
the previous granting period. Additionally, firms that did not hold
a separate rate in a previous granting period may not use a
separate-rate certification, but, instead must submit a separate-
rate application for separate rate status.
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Lastly, we received an untimely filing of Amanda Foods (Vietnam)
Limited (``Amanda Foods''), separate-rate certifications on July 31,
2009, 96 days after the April 27, 2009, deadline, which was announced
in the Initiation Notice. On August 7, 2009, the Department rejected
Amanda Foods' separate rate certification due to untimely filing. See
Letter from the Department of Commerce, to Amanda Foods (Vietnam)
Limited, regarding Antidumping Duty Administrative Review of Certain
Frozen Warmwater Shrimp from the Socialist Republic of Vietnam. On
August 4, 2009, Amanda Foods requested that the Department reconsider
its rejection and subsequently re-filed its original certification. On
August 12, 2009, Amanda Foods submitted a second separate rate
certification to the Department. We continue to determine that Amanda
Foods' certification is untimely and have rejected the second
submission. We note that the Initiation Notice stated that separate
rate certifications were due 30 days from the publication of the March
26, 2009, Federal Register notice, and that Amanda Foods did not
request an extension of the deadline to submit its certification.
Consequently, as Amanda Foods has not demonstrated in a timely manner
its eligibility for separate rate status, we preliminarily determine
that Amanda Foods will become a part of the Vietnam-wide entity for the
purposes of this review.
A. Absence of De Jure Control
The Department considers the following de jure criteria in
determining whether an individual company may be granted a separate
rate: (1) An absence of restrictive stipulations associated with an
individual exporter's business and export licenses; and (2) any
legislative enactments decentralizing control of companies.
Although the Department has previously assigned a separate rate to
the companies eligible for a separate rate in the instant proceeding,
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 12440 (March 13, 1998).
In this review, the Minh Phu Group, and Nha Trang Seafoods
submitted complete responses to the separate rates section of the
Department's NME questionnaire. Twenty separate rate respondents also
submitted timely certifications. 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 de jure absence of
government control over their export activities. Additionally, twenty
participating separate rate companies/groups submitted timely separate
rate certifications and nine companies/groups submitted timely separate
rate applications.\7\
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\7\ The non-selected respondents of this administrative review
that submitted a timely separate rate certification/separate rate
application are: Viet Hai Seafood Co., Ltd., a/k/a Vietnam Fish One
Co., Ltd. (``Fish One''), Phuong Nam Co., Ltd., and Western Seafood
Processing and Exporting Factory (collectively ``Phuong Nam''), Cam
Ranh Seafoods Processing Enterprise PTE (``Camranh Seafoods''),
Danang Seaproducts Import Export Corporation (``Seaprodex Danang''),
Minh Hai Jostoco, Cuu Long Seaproducts Company (``Cuu Long
Seapro''), Cadovimex Seafood Import-Export and Processing Joint
Stock Company (``CADOVIMEX-VIETNAM''), Can Tho Import Export Fishery
Limited Company (``CAFISH''), Thuan Phuoc Seafoods and Trading
Corporation, Viet Foods Co., Ltd., Coastal Fisheries Development
Corporation (``COFIDEC''), Sao Ta Foods Joint Stock Company (``FIMEX
VN''), CAMIMEX, INCOMFISH, Cafatex Fishery Joint Stock Corporation
(``Cafatex Corporation''), Seaprodex Minh Hai, CATACO, Ca Mau
Seafood Joint Stock Company (``Seaprimexco Vietnam''), Nha Trang
Fisheries Joint Stock Company (``Nha Trang Fisco''), Bac Lieu
Fisheries Joint Stock Company (formerly known as Bac Lieu Fisheries
Limited Company) (``Bac Lieu''), Grobest, Gallant Ocean (Vietnam)
Co., Ltd. (``Gallant Ocean Vietnam''), UTXI Aquatic Products
Processing Corporation (``UTXI''), STAPIMEX, C.P. Vietnam Livestock
Company Limited (Currently C.P. Vietnam Livestock Corporation) (``C.
Vietnam''), Kim Anh Company Limited (``Kim Anh''), VIMEX, Ngoc Sinh
Private Enterprise (``Ngoc Sinh''), Phu Cuong Seafood Processing and
Import-Export Co., Ltd.
---------------------------------------------------------------------------
[[Page 12211]]
We have no information in this proceeding that would cause us to
reconsider this determination. Thus, we believe that the evidence on
the record supports a preliminary finding of an absence of de jure
government control based on: (1) An absence of restrictive stipulations
associated with the exporter's business license; and (2) the legal
authority on the record decentralizing control over the respondents.\8\
---------------------------------------------------------------------------
\8\ This preliminary finding applies to the two mandatory
respondents of this administrative review: The Minh Phu Group and
Nha Trang Seafoods, and the non-selected respondents eligible for a
separate rate listed in the preceding footnote.
---------------------------------------------------------------------------
B. Absence of De Facto Control
The absence of de facto government 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 their questionnaire responses, the mandatory respondents and
separate rate respondents submitted evidence indicating an absence of
de facto government control over their export activities. Specifically,
this evidence indicates that: (1) Each company sets its own export
prices independent of the government and without the approval of a
government authority; (2) each company retains the proceeds from its
sales and makes independent decisions regarding the disposition of
profits or financing of losses; (3) each 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) there is no restriction on any of the companies use of export
revenues. Therefore, the Department preliminarily finds that the Minh
Phu Group and Nha Trang Seafoods, and the separate rate companies have
established prima facie that they qualify for separate rates under the
criteria established by Silicon Carbide and Sparklers.
Rate for Non-Selected Companies
Based on timely requests from individual exporters and Petitioner,
the Department originally initiated this review with respect to 198
companies/groups. In accordance with section 777A(c)(2)(B) of the Act,
the Department employed a limited examination methodology, as it did
not have the resources to examine all companies for which a review
request was made. As stated previously, the Department selected two
exporters, the Minh Phu Group and Nha Trang Seafoods, as mandatory
respondents in this review. Twenty-nine additional companies submitted
timely separate rate applications and separate rate certifications as
requested by the Department and remain subject to review as cooperative
separate rate respondents.
We note that the statute and the Department's regulations do not
directly address the establishment of a rate to be applied to
individual companies not selected for examination where the Department
limited its examination in an administrative review pursuant to section
777A(c)(2) of the Act. The Department's practice in this regard, in
cases involving limited selection based on exporters accounting for the
largest volumes of trade, has been to look to section 735(c)(5) of the
Act, which provides instructions for calculating the all-others rate in
an investigation, for guidance. Consequently, the Department generally
weight-averages the rates calculated for the mandatory respondents,
excluding zero and de minimis rates and rates based entirely on facts
available (``FA''), and applies that resulting weighted-average margin
to non-selected cooperative separate-rate respondents. See, e.g.,
Wooden Bedroom Furniture From the People's Republic of China:
Preliminary Results of Antidumping Duty Administrative Review,
Preliminary Results of New Shipper Review and Partial Rescission of
Administrative Review, 73 FR 8273 (February 13, 2008) (unchanged in
final results). Consequently, because the Department has calculated
positive margins for both mandatory respondents in these preliminary
results, and consistent with our practice, we have preliminarily
established a margin for the separate-rate respondents based on a
simple average \9\ of the rates we calculated for the two mandatory
respondents, excluding any rates that are zero, de minimis, or based
entirely on FA. For the Vietnam-wide entity, we have assigned the
entity's current rate and only rate ever determined for the entity in
this proceeding.
---------------------------------------------------------------------------
\9\ Because there are only two respondents for which a company-
specific margin was calculated in this review, the Department has
calculated a simple average margin to ensure that the total import
quantity and value for each company is not inadvertently revealed.
---------------------------------------------------------------------------
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 FOPs, 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 FOPs, the Department shall utilize, to the extent possible, the
prices or costs of FOPs in one or more market economy countries that
are: (1) At a level of economic development comparable to that of the
NME country; and (2) significant producers of comparable merchandise.
The sources of the surrogate factor values are discussed under the
``Normal Value'' section below and in Memorandum to the File through
Scot Fullerton, Program Manager, Office 9 from Bobby Wong, Senior
International Trade Analyst, Office 9; 2008-2009 Antidumping Duty
Administrative Reviews of Certain Frozen Warmwater Shrimp from the
Socialist Republic of Vietnam: Surrogate Values for the Preliminary
Results, dated March 8, 2010 (``Surrogate Value Memorandum'').
On May 18, 2009, the Department sent interested parties a letter
requesting comments on surrogate country selection and information
pertaining to valuing factors of production. On August 17, 2009, the
Minh Phu Group, Nha Trang Seafoods, CAMIMEX, and Grobest submitted
surrogate country comments suggesting that the Department select
Bangladesh as the surrogate country. On August 17, 2009,
[[Page 12212]]
Petitioner filed surrogate country comments suggesting that the
Department select India as the surrogate country.
On September 18, 2009, Petitioner, the Minh Phu Group, Nha Trang
Seafoods, CAMIMEX, and Grobest submitted surrogate value data. For a
detailed account of the Department's surrogate country selection,
please see the ``Surrogate Country'' section below.
Pursuant to its practice, the Department received a list of
potential surrogate countries from the Office of Policy (``OP'').\10\
The OP determined that Bangladesh, Pakistan, India, Sri Lanka, the
Philippines, and Indonesia were at a comparable level of economic
development to Vietnam. See Surrogate Country List. The Department
considers the six countries identified by the OP in its Surrogate
Country List as ``equally comparable in terms of economic
development.'' Id. Thus, we find that Bangladesh, Pakistan, India, Sri
Lanka, the Philippines, and Indonesia are all at an economic level of
development equally comparable to that of Vietnam.
---------------------------------------------------------------------------
\10\ See Memorandum from Kelly Parkhill, Acting Director, Office
of Policy, to Scot T. Fullerton, Program Manager, AD/CVD
Operationst, Office 9: Request for a List of Surrogate Countries for
a Antidumping Duty Administrative Review of the Antidumping Duty
Order on Frozen Warmwater Shrimp from the Socialist Republic of
Vietnam, dated May 15, 2009 (``Surrogate Country List'') from the
OP.
---------------------------------------------------------------------------
Also, consistent with the Department's third administrative review
findings and based on publicly available data published by the Food and
Agricultural Organization (``FAO'') of the United Nations' FishStat
Database (``FishStat''), we obtained world production data of frozen
warmwater shrimp. Specifically, the Department has reviewed the data
from FishStat which shows that Bangladesh, Indonesia, India, Pakistan,
and Sri Lanka all produce the identical merchandise. See Memorandum to
the File from Susan Pulongbarit, International Trade Analyst, Re: 2008-
2009 Administrative Review of Certain Warmwater Shrimp from Vietnam:
Fishstat Data, dated March 8, 2010. Therefore, all countries are being
considered as an appropriate surrogate country for Vietnam because each
country produces the identical merchandise. Moreover, according to
FishStat, in 2005, the most recent year for which FishStat export
statistics are available, Bangladesh, Indonesia, and India, are all
significant producers of comparable merchandise. See id. Though both
Pakistan and Sri Lanka export frozen shrimp, the quantities they export
do not qualify them as significant producers of the subject
merchandise. As Bangladesh, Indonesia, and India are all significant
producers of comparable merchandise, the Department must look to data
considerations when choosing the most appropriate surrogate country
from among these countries.
With regard to India and Indonesia, the record contains publicly
available surrogate factor value information for some factors. The Minh
Phu Group, Nha Trang Seafoods, Grobest, and CAMIMEX provided data for
both Indonesia and Bangladesh from a study conducted by the Network of
Aquaculture Centres in Asia-Pacific (``NACA''), an intergovernmental
organization affiliated with the UN's FAO. However, unlike the
Bangladeshi data within the NACA study, the Indonesian shrimp data is
limited and does not satisfy as many factors of the Department's data
selection criteria (e.g., broad-market average). Thus, Indonesia is not
the most appropriate surrogate country for purposes of this review.
With respect to India, the only shrimp value on the record is ranged
data obtained from one Indian respondent's data in the current
administrative review of warmwater shrimp from India, which also does
not satisfy as many factors of the Department's data selection criteria
(e.g., public availability, broad-market average).
The Department's practice when selecting the best available
information for valuing FOPs, in accordance with section 773(c)(1) of
the Act, is to select, to the extent practicable, surrogate values
which are product-specific, representative of a broad market average,
publicly available, contemporaneous with the POR and exclusive of taxes
and duties.\11\ As a general matter, the Department prefers to use
publicly available data representing a broad market average to value
surrogate values. See id. The Department notes that the value of the
main input, head-on, shell-on (``HOSO'') shrimp, is a critical factor
of production in the dumping calculation as it accounts for a
significant percentage of normal value. Moreover, the ability to value
shrimp on a count size basis is a significant consideration with
respect to the data available on the record.
---------------------------------------------------------------------------
\11\ See Fresh Garlic from the People's Republic of China: Final
Results and Partial Rescission of the Eleventh Administrative Review
and New Shipper Reviews, 72 FR 34438 (June 22, 2007) and
accompanying Issues and Decision Memorandum at Comment 2A.
---------------------------------------------------------------------------
The Department notes that the mandatory respondents and Petitioner
submitted count-size specific shrimp data and equally comparable
surrogate company financial statements from shrimp processors.
Therefore, availability of count-size specific data on this record is
not the determining factor in selecting a surrogate country for this
review.
However, the Bangladeshi shrimp values within the NACA study are
compiled by the UN's FAO from actual pricing records kept by
Bangladeshi farmers, traders, depots, agents, and processors. See
Surrogate Value Memorandum. The Bangladeshi shrimp values within the
NACA study represent a broad-market average and are publicly available,
unlike those of the single Indian processor. Therefore, with respect to
the data considerations, because the record contains shrimp values for
Bangladesh that better meet our selection criteria than the India
source, we are selecting Bangladesh as the surrogate country.
In this regard, given the above-cited facts, we find that the
information on the record shows that Bangladesh is an appropriate
surrogate country because Bangladesh is at a similar level of economic
development pursuant to section 773(c)(4) of the Act, is a significant
producer of comparable merchandise, and has reliable, publicly
available data representing a broad-market average for surrogate
valuation purposes.
In accordance with 19 CFR 351.301(c)(3)(ii), for the final results
in an antidumping administrative review, interested parties may submit
publicly available information to value FOPs within 20 days after the
date of publication of these preliminary results.\12\
---------------------------------------------------------------------------
\12\ In accordance with 19 CFR 351.301(c)(1), for the final
results of this administrative review, interested parties may submit
factual information to rebut, clarify, or correct factual
information submitted by an interested party less than ten days
before, on, or after, the applicable deadline for submission of such
factual information. However, the Department notes that 19 CFR
351.301(c)(1) permits new information only insofar as it rebuts,
clarifies, or corrects information recently placed on the record.
See Glycine from the People's Republic of China: Final Results of
Antidumping Duty Administrative Review and Final Rescission, in
Part, 72 FR 58809 (October 17, 2007) and accompanying Issues and
Decision Memorandum at Comment 2.
---------------------------------------------------------------------------
U.S. Price
A. Export Price
In accordance with section 772(a) of the Act, we calculated the
export price (``EP'') for sales to the United States for both the Minh
Phu Group and Nha Trang Seafoods based on the price to unaffiliated
purchasers in the United States, and for Nha Trang Seafoods the use of
constructed export price (``CEP'')
[[Page 12213]]
was not otherwise warranted. We calculated EP based on the price to
unaffiliated purchasers in the United States. In accordance with
section 772(c) of the Act, as appropriate, we deducted from the
starting price to unaffiliated purchasers foreign inland freight and
brokerage and handling. Each of these services was either provided by
an NME vendor or paid for using an NME currency. Thus, we based the
deduction of these movement charges on surrogate values. Additionally,
for international freight provided by a market economy provider and
paid in U.S. dollars, we used the actual cost per kilogram of the
freight. See Surrogate Value Memorandum for details regarding the
surrogate values for movement expenses.
B. Constructed Export Price
For the majority of the Minh Phu Group's sales, we based U.S. price
on CEP in accordance with section 772(b) of the Act, because sales were
made on behalf of the Vietnam-based company by its U.S. affiliate to
unaffiliated purchasers in the United States. For these sales, we based
CEP on prices to the first unaffiliated purchaser in the United States.
Where appropriate, we made deductions from the starting price (gross
unit price) for foreign movement expenses, international movement
expenses, U.S. movement expenses, and appropriate selling adjustments,
in accordance with section 772(c)(2)(A) of the Act.
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. We deducted, where appropriate, commissions,
inventory carrying costs, credit expenses, and indirect selling
expenses. Where foreign movement expenses, international movement
expenses, or U.S. movement expenses were provided by Vietnam service
providers or paid for in Vietnamese Dong, we valued these services
using surrogate values (see ``Factors of Production'' section below for
further discussion). For those expenses that were provided by a market-
economy provider and paid for in market-economy currency, we used the
reported expense. Due to the proprietary nature of certain adjustments
to U.S. price, for a detailed description of all adjustments made to
U.S. price for both mandatory respondents, see Memorandum to the File,
through Scot Fullerton, Program Manager, Office 9, from Bobby Wong,
Senior International Trade Analyst, Office 9, 2008-2009 Antidumping
Duty Administrative Review of Certain Frozen Warmwater Shrimp from the
Socialist Republic of Vietnam: MPG Program Analysis for the Preliminary
Determination, dated March 8, 2010 (``MPG Analysis Memo''); Memorandum
to the File, through Scot Fullerton, Program Manager, Office 9, from
Susan Pulongbarit, International Trade Analyst, Office 9, 2008-2009
Antidumping Duty Administrative Review of Certain Frozen Warmwater
Shrimp from the Socialist Republic of Vietnam: Nha Trang Seafoods
Program Analysis for the Preliminary Determination, dated March 8, 2010
(``Nha Trang Seafoods Analysis Memo'').
Normal Value
1. Methodology
Section 773(c)(1)(B) of the Act provides that the Department shall
determine the NV using a 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. The Department bases NV on the FOPs
because the presence of government controls on various aspects of NMEs
renders price comparisons and the calculation of production costs
invalid under the Department's normal methodologies.
2. Factor Valuations
In accordance with section 773(c) of the Act, we calculated NV
based on FOPs reported by respondents for the POR, except as noted
above. To calculate NV, we multiplied the reported per-unit factor-
consumption rates by publicly available Bangladeshi surrogate values.
In selecting the surrogate values, we considered the quality,
specificity, and contemporaneity of the data. As appropriate, we
adjusted input prices by including freight costs to make them delivered
prices. Specifically, we added to Bangladeshi import surrogate values a
surrogate freight cost using the shorter of the reported distance from
the domestic supplier to the factory of production or the distance from
the nearest seaport to the factory of production where appropriate.
This adjustment is in accordance with the Court of Appeals for the
Federal Circuit's decision in Sigma Corp. v. United States, 117 F. 3d
1401, 1407-1408 (Fed. Cir. 1997). Where we did not use Bangladeshi
Import Statistics, we calculated freight based on the reported distance
from the supplier to the factory.
In instances where we relied on import data to value inputs, in
accordance with the Department's practice, we excluded imports from
both NME countries and countries deemed to maintain broadly available,
non-industry-specific subsidies which may benefit all exporters to all
export markets (i.e., Armenia, Azerbaijan, Belarus, China, Georgia,
India, Indonesia, Kyrgyz Republic, Moldova, South Korea, Tajikistan,
Thailand, Turkmenistan, Uzbekistan, and Vietnam.) from our surrogate
value calculations. See, e.g., Tapered Roller Bearings and Parts
Thereof, Finished and Unfinished, From the People's Republic of China;
Final Results of 1999-2000 Administrative Review, Partial Rescission of
Review, and Determination Not to Revoke Order in Part, 66 FR 57420
(November 15, 2001) and accompanying Issues and Decision Memorandum at
Comment 1. See ``Memorandum to the File: Factors of Production
Valuation Memorandum for the Preliminary Results of Antidumping Duty
Administrative Review of Floor-standing, Metal-top Ironing Tables and
Certain Parts Thereof (Ironing Tables) from the People's Republic of
China (PRC),'' dated August 31, 2006 (Factor Valuation Memo), for a
complete discussion of the import data that we excluded from our
calculation of surrogate values. This memorandum is on file in the
Central Records Unit (``CRU'').
With regard to surrogate values and the market-economy input
values, we have disregarded prices that we have reason to believe or
suspect may be subsidized. We have reason to believe or suspect that
prices of inputs from Indonesia, South Korea, Thailand, and India may
have been subsidized. We have found in other proceedings that these
countries maintain broadly available, non-industry-specific export
subsidies and, therefore, it is reasonable to infer that all exports to
all markets from these countries may be subsidized. See Notice of Final
Determination of Sales at Less Than Fair Value and Negative Final
Determination of Critical Circumstances: Certain Color Television
Receivers From the People's Republic of China, 69 FR 20594 (April 16,
2004) (``CTVs from the PRC''), and accompanying Issues and Decision
Memorandum at Comment 7; see also 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. The
[[Page 12214]]
legislative history of the Act provides that in making its
determination as to whether input values may be subsidized, the
Department is not required to conduct a formal investigation, rather,
Congress directed the Department to base its decision on information
that is available to it at the time it makes its determination. See
Omnibus Trade and Competitiveness Act of 1988, Conference Report to
Accompanying, H.R. Rep. 100-576 at 590 (1988).
Therefore, based on the information currently available, we have
not used prices from these countries either in calculating the
Bangladeshi import-based surrogate values or in calculating market-
economy input values. In instances where a market-economy input was
obtained solely from suppliers located in these countries, we used
Bangladeshi import-based surrogate values to value the input.
Raw Shrimp Value
The Department notes that Petitioner submitted Indian shrimp values
and the mandatory respondents submitted Bangladeshi shrimp values with
which to value the main input, raw shrimp. Petitioner submitted Indian
shrimp values obtained from a single process, Devi Sea Foods Ltd., and
an article from the September 2009 edition of Business Standard. As
stated above, the Minh Phu Group, Nha Trang Seafoods, Grobest, and
CAMIMEX submitted data contained in the NACA study compiled by the UN's
FAO.
As stated above, the Department's practice when selecting the best
available information for valuing FOPs is to select, to the extent
practicable, surrogate values which are product-specific,
representative of a broad market average, publicly available,
contemporaneous with the POR and exclusive of taxes and duties.
Petitioner's submitted shrimp values from Devi Sea Foods Ltd., although
publicly available, are from a single Bangladeshi shrimp producer of
comparable merchandise, thus does not represent a broad market average
of prices. The Department prefers using data that is representative of
a broad market average with which to value the FOPs. Therefore, to
value the main input, head-on, shell-on shrimp, the Department used
data contained in the NACA study.\13\
---------------------------------------------------------------------------
\13\ For a detailed explanation of the Department's valuation of
shrimp, see Surrogate Value Memorandum.
---------------------------------------------------------------------------
The Department used United Nations ComTrade Statistics, provided by
the United Nations Department of Economic and Social Affairs'
Statistics Division, as its primary source of Bangladeshi surrogate
value data.\14\ The data represents cumulative values for the calendar
year 2007, for inputs classified by the Harmonized Commodity
Description and Coding System number. For each input value, we used the
average value per unit for that input imported into Bangladesh from all
countries that the Department has not previously determined to be NME
countries. Import statistics from countries that the Department has
determined to be countries which subsidized exports (i.e., Indonesia,
Korea, Thailand, and India) and imports from unspecified countries also
were excluded in the calculation of the average value. See CTVs from
the PRC, 69 FR 20594 (April 16, 2004).
---------------------------------------------------------------------------
\14\ This can be accessed online at: http://www.unstats.un.org/unsd/comtrade/.
---------------------------------------------------------------------------
It is the Department's practice to calculate price index adjustors
to inflate or deflate, as appropriate, surrogate values that are not
contemporaneous with the POR using the wholesale price index (``WPI'')
for the subject country. See Notice of Preliminary Determination of
Sales at Less Than Fair Value and Postponement of Final Determination:
Hand Trucks and Certain Parts Thereof from the People's Republic of
China, 69 FR 29509 (May 24, 2004). However, in this case, a WPI was not
available for Bangladesh. Therefore, where publicly available
information contemporaneous with the POR with which to value factors
could not be obtained, surrogate values were adjusted using the
Consumer Price Index (``CPI'') rate for Bangladesh, or the WPI for
India or Indonesia (for certain surrogate values where Bangladeshi data
could not be obtained), as published in the International Financial
Statistics of the International Monetary Fund. We made currency
conversions, where necessary, pursuant to 19 CFR 351.415, to U.S.
dollars using the daily exchange rate corresponding to the reported
date of each sale. We relied on the daily exchange rates posted on the
Import Administration Web site (http://www.trade.gov/ia/). See
Surrogate Value Memorandum.
We valued the non-shrimp FOPs as follows:
The Department used UN ComTrade to value the raw material and
packing material inputs that the Minh Phu Group and Nha Trang Seafoods
used to produce the merchandise under review during the POR, except
where listed below. For a detailed description of all surrogate values
for respondents, see Surrogate Value Memorandum.
We valued electricity using data from the Bangladesh Ministry of
Power, Energy, & Mineral Resources. This information was published on
their Power Division's Web site. See Surrogate Value Memorandum.
Consistent with the third administrative review, we valued water
using 2001 data from the Asian Development Bank. See Memorandum to the
File through Catherine Bertrand, Program Manager, Office 9, Import
Administration, from Irene Gorelick, Senior Analyst, regarding
Antidumping Duty Administrative of Certain Frozen Warmwater Shrimp from
the Socialist Republic of Vietnam: Surrogate Values for the Preliminary
Results (``3rd Administrative Review SV Memo'') at Exhibit 1. We
inflated the value using the POR average CPI rate. See Surrogate Value
Memorandum.
We valued diesel using data published by the World Bank in
``Bangladesh: Transport at a Glance,'' published in June 2006. We
inflated the value using the POR average CPI rate. Id.
To value truck freight and river freight, we used data published in
2007 Statistical Yearbook of Bangladesh published by the Bangladesh
Bureau of Statistics. We inflated the value using the POR average CPI
rate. Id.
To value marine insurance, the Department used rates from RJG
consultants. These rates are for sea freight from the Far East Region.
Id.
We valued warehouse/cold storage rates published in an article on
tropical-seeds.com in July 1997. We inflated the value using the POR
average CPI rate. Id.
Consistent with the third administrative review, we valued
containerization using information previously available on the Import
Administration Web site. See 3rd Administrative Review SV Memo at
Exhibit 1. We inflated the value using the POR average WPI rate. See
Surrogate Value Memorandum.
Consistent with the third administrative review, the Department
valued terminal lift charges using data from the Web site http://www.srinternational.com/standard_containers.htm. See 3rd
Administrative Review SV Memo at Exhibit 1. We inflated the value using
the POR average WPI rate. See Surrogate Value Memorandum.
To value brokerage and handling (``B&H''), the Department used a
simple average of the B&H expenses from Essar Steel Ltd., Himalaya
International Ltd., and Navneet Publications (India) Ltd. Id.
[[Page 12215]]
We valued the by-product using shell scrap values from the
Memorandum to Barbara E. Tillman, Director, Office of AD/CVD
Enforcement VII, through Maureen Flannery, Program Manager, Office of
AD/CVD Enforcement VII, from Christian Hughes and Adina Teodorescu,
Case Analysts, subject: Surrogate Valuation of Shell Scrap: Freshwater
Crawfish tail Meat from the People's Republic of China (PRC),
Administrative Review 9/1/00-8/31/00 and New Shipper Reviews 9/1/00-8/
31/01 and 9/1/00-10/15/01. We inflated the value using the POR average
WPI rate. Id.
To value factory overhead, Selling, General, & Administrative
expenses, and profit, we used the simple average of the 2007-2008
financial statement of Apex Foods Limited and the 2007-2008 financial
statement of Gemini Seafood Limited, both of which are Bangladeshi
shrimp processors. See Surrogate Value Memorandum, at Exhibit 8.
Preliminary Results of the Review
The Department has determined that the following preliminary
dumping margins exist for the period February 1, 2007, through January
31, 2008:
Certain Frozen Warmwater Shrimp From Vietnam
------------------------------------------------------------------------
Weighted-
Manufacturer/Exporter average margin
(percent)
------------------------------------------------------------------------
Minh Phu Group:
Minh Phat Seafood Co., Ltd., aka Minh Phat Seafood 3.27%
aka Minh Phu Seafood Export Import Corporation
(and affiliates Minh Qui Seafood Co., Ltd. and
Minh Phat Seafood Co., Ltd.) aka Minh Phu Seafood
Corp. aka Minh Phu Seafood Corporation aka Minh
Qui Seafood aka Minh Qui Seafood Co., Ltd........
Nha Trang Seaproduct Company (``Nha Trang Seafoods''). 2.50%
Bac Lieu Fisheries Company Limited, aka Bac Lieu 2.89%
Fisheries Company Limited (``Bac Lieu'').............
C.P. Vietnam Livestock Company Limited (``C.P. 2.89%
Vietnam'')...........................................
Cadovimex Seafood Import-Export and Processing Joint 2.89%
Stock Company (``CADOVIMEX-VIETNAM'') aka Cai Doi Vam
Seafood Import-Export Company (``Cadovimex'')........
Cafatex Fishery Joint Stock Corporation (``Cafatex 2.89%
Corp.'') aka Cantho Animal Fisheries Product
Processing Export Enterprise (Cafatex), aka Cafatex,
aka Cafatex Vietnam, aka Xi Nghiep Che Bien Thuy Suc
San Xuat Khau Can Tho, aka Cas, aka Cas Branch, aka
Cafatex Saigon, aka Cafatex Fishery Joint Stock
Corporation, aka Cafatex Corporation, aka Taydo
Seafood Enterprise...................................
Cam Ranh Seafoods Processing Enterprise Company 2.89%
(``Camranh Seafoods'') aka Camranh Seafoods..........
Camau Frozen Seafood Processing Import Export 2.89%
Corporation (``CAMIMEX''), aka Camimex, aka Camau
Seafood Factory No. 4, aka Camau Seafood Factory No.
5....................................................
Can Tho Agricultural and Animal Product Import Export 2.89%
Company (``CATACO'') aka Can Tho Agricultural
Products aka CATACO..................................
Can Tho Import Export Fishery Limited Company 2.89%
(``CAFISH'').........................................
Coastal Fishery Development aka Coastal Fisheries 2.89%
Development Corporation (``Cofidec'') aka Coastal
Fisheries Development Corporation (``Cofidec'')......
Cuulong Seaproducts Company (``Cuu Long Seapro'') aka 2.89%
Cuu Long Seaproducts Limited (``Cuulong Seapro'') aka
Cuulong Seapro, aka Cuulong Seaproducts Company
(``Cuulong Seapro'') (``Cuu Long Seapro'')...........
Danang Seaproducts Import Export Corporation 2.89%
(``Seaprodex Danang'') aka Tho Quang Seafood
Processing & Export Company, aka Seaprodex Danang,
aka Tho Quang Seafood Processing And Export Company,
aka Tho Quang, aka Tho Quang Co......................
Gallant Ocean (Vietnam) Co., Ltd. (``Gallant Ocean 2.89%
Vietnam'')...........................................
Grobest & I-Mei Industry Vietnam, aka Grobest, aka 2.89%
Grobest & I-Mei Industry (Vietnam) Co., Ltd..........
Investment Commerce Fisheries Corporation 2.89%
(``Incomfish'')......................................
Kim Anh Company Limited (``Kim Anh'')................. 2.89%
Minh Hai Export Frozen Seafood Processing Joint Stock 2.89%
Company, aka Minh Hai Jostoco, aka Minh Hai Export
Frozen Seafood Processing Joint-Stock Company (``Minh
Hai Jostoco''), aka Minh Hai Export Frozen Seafood
Processing Joint-Stock Company, aka Minh Hai Joint
Stock Seafood Processing Joint-Stock Company, aka
Minh Hai Export Frozen Seafood Processing Joint-Stock
Co.\15\..............................................
Minh Hai Joint-Stock Seafoods Processing Company 2.89%
(``Seaprodex Minh Hai'') aka Sea Minh Hai, aka Minh
Hai Joint-Stock Seafoods Processing Company..........
Minh Hai Sea Products Import Export Company 2.89%
(``Seaprimex Co'') , aka Ca Mau Seafood Joint Stock
Company (``SEAPRIMEXCO'') aka Seaprimexco Vietnam,
aka Seaprimexco Ca Mau Seafood Joint Stock Company
(``Seaprimexco'')....................................
Ngoc Sinh Private Enterprise, aka Ngoc Sinh Seafoods, 2.89%
aka Ngoc Sinh Seafoods Processing and Trading
Enterprise...........................................
Nha Trang Fisheries Joint Stock Company (``Nha Trang 2.89%
Fisco'').............................................
Phu Cuong Seafood Processing and Import-Export Co., 2.89%
Ltd..................................................
Phuong Nam Co., Ltd...................................
Western Seafood Processing and Exporting Factory......
Sao Ta Foods Joint Stock Company (``Fimex VN'')....... 2.89%
Soc Trang Aquatic Products and General Import Export 2.89%
Company (``Stapimex'')...............................
Thuan Phuoc Seafoods and Trading Corporation..........
UTXI Aquatic Products Processing Company, aka UT XI 2.89%
Aquatic Products Processing Company, aka UT-XI
Aquatic Products Processing Company, aka UTXI, aka
UTXI Co. Ltd., aka Khanh Loi Seafood Factory, aka
Hoang Phuong Seafood Factory.........................
Viet Foods Co., Ltd. (``Viet Foods'')................. 2.89%
Viet Hai Seafood Co., Ltd. aka Vietnam Fish One Co., 2.89%
Ltd. (``Fish One'')..................................
Vinh Loi Import Export Company (``Vimexco''), aka Vinh 2.89%
Loi Import Export Company (``VIMEX''), aka VIMEXCO,
aka VIMEX............................................
Vietnam-Wide Rate\16\................................. 25.76%
------------------------------------------------------------------------
\16\ The Vietnam-wide entity preliminarily includes Amanda Foods.
[[Page 12216]]
The Department will disclose calculations performed for these
preliminary results to the parties within five days of the date of
publication of this notice in accordance with 19 CFR 351.224(b).
Interested parties may submit case briefs and/or written comments
no later than 30 days after the date of publication of these
preliminary results of review. See 19 CFR 351.309(c)(ii). Rebuttal
briefs and rebuttals to written comments, limited to issues raised in
such briefs or comments, may be filed no later than 37 days after the
date of publication of these preliminary results of review. See 19 CFR
351.309(d).
Any interested party may request a hearing within 30 days of
publication of these preliminary results. See 19 CFR 351.310(c).
Requests should contain the following information: (1) The party's
name, address, and telephone number; (2) the number of participants;
and (3) a list of the issues to be discussed. Oral presentations will
be limited to issues raised in the briefs. If we receive a request for
a hearing, we plan to hold the hearing seven days after the deadline
for submission of the rebuttal briefs at the U.S. Department of
Commerce, 14th Street and Constitution Avenue, NW., Washington, DC
20230.
The Department will issue the final results of this administrative
review, which will include the results of its analysis of issues raised
in any such comments, within 120 days of publication of these
preliminary results, pursuant to section 751(a)(3)(A) of the Act.
Assessment Rates
Upon issuance of the final results, the Department will determine,
and CBP shall assess, antidumping duties on all appropriate entries
covered by these reviews. We will instruct CBP to liquidate entries
containing merchandise from the Vietnam-wide entity at the Vietnam-wide
rate we determine in the final results of review. We intend to issue
assessment instructions to CBP 15 days after the date of publication of
the final results of review. In accordance with 19 CFR 351.212(b)(1),
for CAMIMEX, the Minh Phu Group, and Phuong Nam Co., Ltd., and Western
Seafood Processing and Exporting Factory (collectively ``Phuong Nam''),
we calculated an exporter/importer (or customer)-specific assessment
rate for the merchandise subject to this review. Where the respondent
has reported reliable entered values, we calculated importer (or
customer)-specific ad valorem rates by aggregating the dumping margins
calculated for all U.S. sales to each importer (or customer) and
dividing this amount by the total entered value of the sales to each
importer (or customer). See 19 CFR 351.212(b)(1). Where an importer (or
customer)-specific ad valorem rate is greater than de minimis, we will
apply the assessment rate to the entered value of the importer's/
customer's entries during the review period. See 19 CFR 351.212(b)(1).
Where we do not have entered values for all U.S. sales, we
calculated a per-unit assessment rate by aggregating the antidumping
duties due for all U.S. sales to each importer (or customer) and
dividing this amount by the total quantity sold to that importer (or
customer). See 19 CFR 351.212(b)(1). To determine whether the duty
assessment rates are de minimis, in accordance with the requirement set
forth in 19 CFR 351.106(c)(2), we calculated importer (or customer)-
specific ad valorem ratios based on the estimated entered value. Where
an importer (or customer)-specific ad valorem rate is zero or de
minimis, we will instruct CBP to liquidate appropriate entries without
regard to antidumping duties. See 19 CFR 351.106(c)(2).
For the companies receiving a separate rate that were not selected
for individual review, we will calculate an assessment rate based on
the weighted average of the cash deposit rates calculated for the
companies selected for individual review pursuant to section 735(c)(5)
of the Act. Where the weighted-average ad valorem rate is zero or de
minimis, we will instruct CBP to liquidate appropriate entries without
regard to antidumping duties. See 19 CFR 351.106(c)(2).
For Vinh Hoan and Binh Anh, companies for which this review is
preliminarily rescinded, antidumping duties shall be assessed at rates
equal to the cash deposit of estimated antidumping duties required at
the time of entry, or withdrawal from warehouse, for consumption, in
accordance with 19 CFR 351.212(c)(2).
Cash Deposit Requirements
The following cash deposit requirements will be effective upon
publication of the final results of the administrative review for all
shipments of warmwater shrimp from Vietnam entered, or withdrawn from
warehouse, for consumption on or after the publication date, as
provided by section 751(a)(1) of the Act: (1) For the exporters listed
above, the cash-deposit rate will be that established in the final
results of review (except, if the rate is zero or de minimis, no cash
deposit will be required); (2) for previously reviewed or investigated
companies 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 other Vietnamese 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 25.76
percent; and (4) for all non-Vietnamese exporters of subject
merchandise which have not received their own rate, the cash-deposit
rate will be the rate applicable to the Vietnamese exporter that
supplied that exporter. These deposit requirements, when imposed, shall
remain in effect until further notice.
Notification to Importers
This notice also 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 review period. 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.
This administrative review and this notice are in accordance with
sections 751(a)(1) and 777(i) of the Act, and 19 CFR 351.213 and
351.221(b)(4).
Dated: March 8, 2010.
Ronald K. Lorentzen,
DeputyAssistant Secretary for Import Administration.
Attachment
AAAS Logistics
Agrimex
Amerasian Shipping Logistics Corp.; American Container Line
An Giang Fisheries Import and Export Joint Stock Company (Agifish)
An Xuyen
Angiang Agricultural Technology Service
Aquatic Products Trading Company
Bentre Aquaproduct Imports & Exports
Bentre Forestry and Aquaproduct Import-Export Company (``FAQUIMEX'')
Bentre Frozen Aquaproduct Exports; Bentre Seafood Joint Stock and/or
Beseaco
Beseaco; Binh Dinh Fishery Joint Stock
C.P. Vietnam Livestock Co., Ltd.
C.P. Vietnam Livestock Co., Ltd.
Ca Mau Seaproducts Exploitation and Service Corporation (``SES'')
Cai Doi Vam Seafood Import-Export Company (``Cadovimex'')
Camau Seafood Fty
Can Tho Agricultural Products
Can Tho Seafood Exports
Cantho Animal Fisheries Product Processing Export Enterprise
(``Cafatex'')
Cantho Imp & Exp Seafood Join, a.k.a. Caseamex; Cautre Enterprises
[[Page 12217]]
Cautre Export Goods Processing Joint Stock Company
Chun Cheng Da Nang Co., Ltd.
Co Hieu; Cong Ty D Hop Viet Cuong
D & N Foods Processing Danang
Da Van Manh
Dong Phuc Huynh
Dragon Waves Frozen Food Fty.
Duyen Hai Bac Lieu Company (``T.K. Co.'')
Duyen Hai Foodstuffs Processing Factory (``COSEAFEX'')
Four Season Food
Frozen Fty
Frozen Seafoods Factory No. 32
Frozen Seafoods Factory No. 32 and/or Frozen Seafoods FTy
Frozen Seafoods Fty
General Imports & Exports
Hacota; Hai Ha Private Enterprise
Hai Thuan Export Seaproduct Processing Co., Ltd.
Hai Viet
Hai Viet Corporation (``HAVICO'')
Hanoi Seaproducts Import Export Corporation (``Seaprodex Hanoi'')
Hatrang Frozen Seaproduct Fty; Hoa Nam Marine Agricultural
Hoan An Fishery
Hoan Vu Marine Product Co., Ltd.
Hua Heong Food Ind Vietnam
Khanh Loi Trading
Kien Gang Sea Products Import-Export Company (``Kisimex'')
Kien Gang Seaproduct Import and Export Company (``KISIMEX'')
Kien Long Seafoods
Konoike Vinatrans Logistics
Lamson Import-Export Foodstuffs Corporation
Long An Food Processing Export Joint Stock Company (``LAFOOCO'')
Lucky Shing; Minh Hai Sea Products Import Export Company
(``Seaprimex Co'')
Minh Phu Seafood Export Import Corporation (and affiliates Minh Qui
Seafood Co., Ltd. and Minh Phat Seafood Co., Ltd.)
Nam Hai
Ngoc Sinh Seafoods
Nha Trang Company Limited
Nha Trang Fisheries Co., Ltd.
Pataya Food Industry (Vietnam) Ltd.
Phat Loc Seafood
Phung Hung Private Business
Phuong Nam Seafood Co., Ltd.
Quoc Viet Seaproducts Processing Trading Import and Export Co., Ltd.
Saigon Orchide
Sao Ta Seafood Factory
Sea Product
Sea Products Imports & Exports
Seafood Company Zone II (``Thusaco2'')
Seafood Processing Joint Stock Company No. 9 (previously Seafood
Processing Imports Exports)
Seafoods and Foodstuff Factory
Seaprimexco Vietnam
Seaprodex and/or Seaprodex Hanoi
Seaprodex Min Hai; Seaprodex Quang Tri; Sonacos
Song Huong ASC Import-Export Company Ltd.
Song Huong ASC Import-Export Company Ltd. and/or Song Huong ASC
Joint Stock Company Song Huong ASC Joint Stock Company
Special Aquatic Products Joint Stock Company (``Seaspimex'')
SSC
T & T Co., Ltd.
Tacvan Frozen Seafoods Processing Export
Taydo Seafood Enterprises
Thami Shipping & Airfreight
Thang Long
Thanh Doan Seaproducts Import
Thanh Long
Thien Ma Seafood
Tho Quang Seafood Processing & Export Company Da Nang Fisheries
Service Industrial
Tourism Material and Equipment Company (Matourimex Hochiminh City
Branch)
Truc An Company
Trung Duc Fisheries Private Enterprise
V N Seafoods; Vien Thang Private Enterprise
Viet Nhan Company
Vietfracht Can Tho
Vietnam Fish-One Co., Ltd.
Vietnam Northern Viking Technologie Co.
Vietnam Northern Viking Technology Co., Ltd.
Vietnam Tomec Co., Ltd.
Vilfood Co.
Western Seafood Processing and Exporting Factory.
[FR Doc. 2010-5596 Filed 3-12-10; 8:45 am]
BILLING CODE 3510-DS-P