E8-17234. Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Preliminary Rescission of New Shipper Review

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

The Department of Commerce (“Department”) is conducting new shipper reviews (“NSRs”) of the antidumping duty order on certain frozen fish fillets from the Socialist Republic of Vietnam (“Vietnam”) that cover the period of review (“POR”) of August 1, 2006, through July 31, 2007. See Notice of Antidumping Duty Order: Certain Frozen Fish Fillets from the Socialist Republic of Vietnam, 68 FR 47909 (August 12, 2003) (“Order”). On September 26, 2007, the Department initiated a new shipper review for Southern Fishery Industries Co., Ltd. (“South Vina”). See Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Initiation of Antidumping Duty New Shipper Reviews, 72 FR 15653 (October 9, 2007).

We preliminarily determine that South Vina's sales to the United States were made on a non-bona fide basis. Therefore, we have preliminarily rescinded the review with regard to South Vina. If these preliminary results are adopted in our final results of review, we will instruct U.S. Customs and Border Protection (“CBP”) to assess antidumping duties on entries of subject merchandise during the POR as listed below.

EFFECTIVE DATE:

July 28, 2008.

FOR FURTHER INFORMATION CONTACT:

Javier Barrientos, 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: [phone].

SUPPLEMENTARY INFORMATION:

Background

On September 26, 2007, the Department initiated an antidumping duty new shipper review with regard to South Vina. See Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Initiation of Antidumping Duty New Shipper Reviews, 72 FR 57296, (October 9, 2007). We received timely responses from South Vina on the following dates: Section A Questionnaire Response (November 8, 2007); Sections C & D Questionnaire Response (November 26, 2007); Appendix IX - Importer's Questionnaire Response (November 26, 2007); Supplemental Questionnaire Response (June 9, 2008).

On March 25, 2008, the Department extended the preliminary results of this new shipper reviews to July 22, 2008. See Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Extension of Time Limits for the Preliminary Results of the New Shipper Reviews, 73 FR 15725 (March 25, 2008).

Scope of the Order

The product covered by this order is frozen fish fillets, including regular, shank, and strip fillets and portions thereof, whether or not breaded or marinated, of the species Pangasius Bocourti, Pangasius Hypophthalmus (also known as Pangasius Pangasius), and Pangasius Micronemus. Frozen fish fillets are lengthwise cuts of whole fish. The fillet products covered by the scope include boneless fillets with the belly flap intact (“regular” fillets), boneless fillets with the belly flap removed (“shank” fillets), boneless shank fillets cut into strips (“fillet strips/finger”), which include fillets cut into strips, chunks, blocks, skewers, or any other shape. Specifically excluded from the scope are frozen whole fish (whether or not dressed), frozen steaks, and frozen belly-flap nuggets. Frozen whole dressed fish are deheaded, skinned, and eviscerated. Steaks are bone-in, cross-section cuts of dressed fish. Nuggets are the belly-flaps.

The subject merchandise will be hereinafter referred to as frozen “basa” and “tra” fillets, which are the Vietnamese common names for these species of fish. These products are classifiable under tariff article codes 1604.19.4000, 1604.19.5000, 0305.59.4000, 0304.29.6033 (Frozen Fish Fillets of the species Pangasius including basa and tra) of the Harmonized Tariff Schedule of the United States (“HTSUS”).¹ This order covers all frozen fish fillets meeting the above specification, regardless of tariff classification. Although the HTSUS subheading is provided for convenience and customs purposes, our written description of the scope of the order is dispositive.

Preliminary Rescission of New Shipper Reviews

The Department has preliminarily determined that the sales made by South Vina, which are under examination in the new shipper review, are not bona fide sales based on the totality of circumstances because: (1) the sales were made at high prices as compared to the average of other imports of frozen fish fillets under the same HTSUS classification; (2) the sales quantities are low as compared to the average of other imports of frozen fish fillets under the same HTSUS classification; and, (3) there exists on the record contradictory information with regard to the U.S. customer and whether the subject merchandise was resold at a profit. Due to the proprietary nature of the information discussed in our bona fide sales analysis, please see the separate memoranda addressing this issue for details.² Because the Department has found the sales by South Vina to be non-bona fide, there are no sales to review. Therefore, the Department is preliminarily rescinding the new shipper review with respect to South Vina. See, e.g., Tianjin Tiancheng Pharmaceutical Co., Ltd. v. United States, 366 F. Supp. 2d 1246, 1249 (CIT 2005). We intend, however, to provide South Vina with a final opportunity to clarify the conflicting information on the record of this review and to provide a reasonable explanation for the high prices and low quantities of its U.S. sales. Any additional information and argument presented by South Vina with respect to the above, and any rebuttal of such by interested parties, will be fully considered for the final results of this new shipper review.

Preliminary Results of the Reviews

As a result of our review, we preliminarily find that the Vietnam-wide rate is still applicable to South Vina's entries during the POR:

Certain Frozen Fish Fillets from Vietnam

Manufacturer/Exporter	Margin (Percent)
Southern Fishery Industries Co., Ltd.	63.88

The Department will disclose to parties of this proceeding the analysis performed in reaching the preliminary results 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 this new shipper 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 five days after the deadline for submitting the case briefs. See 19 CFR 351.309(d). The Department requests that interested parties provide an executive summary of each argument contained within the case briefs and rebuttal briefs.

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 intends to issue the final results of this new shipper review, which will include the results of its analysis raised in any such comments, within 90 days of publication of these preliminary results, pursuant to section 751(a)(3)(A) of the Act.

Assessment Rates

Upon completion of the final results, pursuant to 19 CFR 351.212(b), the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries on a per-unit basis.³ The Department intends to issue assessment instructions to CBP 15 days after the date of publication of the final results of the concurrent administrative review because South Vina is considered part of the Vietnam-wide entity for that review period. If these preliminary results are adopted in our final results of review, the Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries. Pursuant to 19 CFR 351.212(b)(1), we will calculate importer-specific (or customer) per-unit duty assessment rates. We will instruct CBP to assess antidumping duties on all appropriate entries covered by this review if any importer-specific assessment rate calculated in the final results of this is above de minimis.

Cash-Deposit Requirements

The following cash deposit requirements will be effective upon publication of the final results of this new shipper review for all shipments of subject merchandise from South Vina entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Act: (1) for subject merchandise produced and exported by South Vina, the cash deposit rate will be that established in the final results of this review (except, if the rate is zero or de minimis, no cash deposit will be required); (2) for subject merchandise exported by South Vina but not manufactured by South Vina, the cash deposit rate will continue to be the Vietnam-wide rate (i.e., 63.88 percent); and (3) for subject merchandise manufactured by South Vina, but exported by any other party, the cash deposit rate will be the rate applicable to the exporter. If the cash deposit rate calculated in the final results is zero or de minimis, no cash deposit will be required for those specific producer-exporter combinations. These cash deposit requirements, when imposed, shall remain in effect until further notice.

Notification to Interested Parties

This notice serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.

We are issuing and publishing this determination in accordance with sections 751(a)(1), 751(a)(2)(B), and 777(i) of the Act and 19 CFR 351.214(h)(i).

Dated: July 22, 2008.

David M. Spooner,

Assistant Secretary for Import Administration.

Footnotes

1.  Until July 1, 2004, these products were classifiable under tariff article codes 0304.20.60.30 (Frozen Catfish Fillets), 0304.20.60.96 (Frozen Fish Fillets, NESOI), 0304.20.60.43 (Frozen Freshwater Fish Fillets) and 0304.20.60.57 (Frozen Sole Fillets) of the HTSUS. Until February 1, 2007, these products were classifiable under tariff article code 0304.20.60.33 (Frozen Fish Fillets of the species Pangasius including basa and tra) of the HTSUS.

2.  See Memorandum to Stephen J. Claeys, Deputy Assistant Secretary for Import Administration, from James C. Doyle, Director, Office 4 Import Administration, regarding Bona Fide Sales Analysis and Intent to Rescind the Review with Respect to Southern Fishery Industries Co., Ltd., dated July 22, 2008.

3.  We divided the total potentially uncollectable dumping duties (calculated multiplying 63.88% by the total entered value) for South Vina by the total entered quantity of subject merchandise sold to that importer during the POR to calculate a per-unit assessment amount. We will direct CBP to assess importer-specific assessment rates based on the resulting per-unit (i.e., per-kilogram) rate by the weight in kilograms of each entry of the subject