E8-19082. Notice of Amended Final Results of Third Antidumping Duty Administrative Review: Certain Frozen Fish Fillets from the Socialist Republic of Vietnam

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On March 24, 2008, the Department of Commerce (the “Department”) published in the Federal Register the final results of the third administrative review of the antidumping duty order on certain frozen fish fillets from the Socialist Republic of Vietnam (“Vietnam”). See Certain Frozen Fish Fillets From the Socialist Republic of Vietnam: Final Results of Antidumping Duty Administrative Review and Partial Rescission, 73 FR 15479 (March 24, 2008) (“Final Results”). The period of review (“POR”) covered August 1, 2005, through July 31, 2006. We are amending our Final Results to correct ministerial errors made in the calculation of the antidumping duty margins for of East Sea Seafoods Joint Venture Co., Ltd. (“ESS”), Can Tho Agricultural and Animal Products Import Export Company (“CATACO”), and QVD Food Company (“QVD”) pursuant to section 751(h) of the Tariff Act of 1930, as amended (the “Act”) and an order from the Court of International Trade (“CIT”). See Catfish Farmers of America v. United States, Consol Court No. 08-00111, (CIT July 22, 2008) (“CIT Order”).

EFFECTIVE DATE:

August 15, 2008.

FOR FURTHER INFORMATION CONTACT:

Alex Villanueva, 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 19, 2007, the Department of Commerce (the “Department”) published in the Federal Register the preliminary results of this administrative review of the antidumping duty order on certain frozen fish fillets from Vietnam. 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) (“Preliminary Results”). On March 24, 2008, the Department published the Final Results in this administrative review. On March 24, 2008, ESS and the Catfish Farmers of America and individual U.S. catfish processors (“Petitioners”) filed timely allegations that the Department made ministerial errors in the Final Results. On March 25, 2008, QVD filed timely allegations that the Department made ministerial errors in the Final Results. On March 31, 2008, the Petitioners submitted rebuttal comments to QVD's March 25, 2008, ministerial error allegations.

Following the publication of the Final Results, parties appealed certain aspects of the Department's Final Results with the CIT. Upon request by the Department, the CIT granted a consent motion for leave to (i) correct certain ministerial errors in calculation of the final antidumping duty margin in the Final Results, (ii) recalculate the antidumping margins accordingly, and (iii) issue and publish the amended final results on or before August 15, 2008. See CIT Order.

Scope of 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^[1] , 1604.19.5000^[2] , 0305.59.4000^[3] , 0304.29.6033^[4] (Frozen Fish Fillets of the species Pangasius including basa and tra) of the Harmonized Tariff Schedule of the United States (“HTSUS”).⁵ 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.

Ministerial Errors

A ministerial error is defined in section 751(h) of the Act and further clarified in 19 CFR 351.224(f) as “an error in addition, subtraction, or other arithmetic function, clerical error resulting from inaccurate copying, duplication, or the like, and any other similar type of unintentional error which the Secretary considers ministerial.”

ESS

After analyzing ESS's single comment, we have determined, in accordance with 19 CFR 351.224(e), that a ministerial error existed in the calculation for ESS in the Final Results because the Department inadvertently failed to change the surrogate value for fish as stated in Comment 4 of the Memorandum from Stephen J. Claeys, Deputy Assistant Secretary for Import Administration, to David M. Spooner, Assistant Secretary for Import Administration, Subject: Issues and Decision Memorandum for the Final Results of Administrative Review: Certain Frozen Fish Fillets from the Socialist Republic of Vietnam (“Issues and Decision Memo”). We are correcting this error for these amended results; however, the correction of this error does not change ESS's final margin. For a detailed discussion of this ministerial error, as well as the Department's analysis, see Memorandum to the File, through Alex Villanueva, Program Manager, AD/CVD Operations, Office 9, from Catherine Bertrand, Senior Case Analyst, AD/CVD Operations, Office 9: Analysis Memorandum for the Amended Final Results of ESS dated April 18, 2008.

CATACO

We agree with the Petitioners that, in accordance with 19 CFR 351.224(e), we made a ministerial error, with regard to the margin assigned to CATACO. In the Final Results, we incorrectly stated that CATACO was included in the Vietnam-wide entity and was assigned a margin of 63.88 percent. However, in the Preliminary Results CATACO received an individual adverse facts available margin of 80.88 percent and, as no interested parties provided comments on CATACO's margin in the case briefs, the individual adverse facts available margin for CATACO should have been unchanged and listed as 80.88 percent.

QVD

QVD alleged eight ministerial error allegations: (1) the Department incorrectly applied the international freight charges pursuant to comment 5D of the Issues and Decision Memo; (2) the Department incorrectly included the undepreciated balance of the surrogate company's assets instead of the amount of annual depreciation corresponding to the financial year; (3) the Department did not exclude imports from “Other Asia, nes” in the surrogate value calculation for banding; (4) the Department did not correctly apply a revised gross unit price for certain verification findings; (5) the Department did not correctly exclude certain sales from the margin calculation based on verification findings; (6) the Department did not correctly apply the partial adverse facts available to QVD's direct and indirect labor pursuant to comment 6A of the Issues and Decision Memo; (7) the Department incorrectly used a non-corrugated paperboard surrogate value for cartons despite QVD s statement that its cartons were of corrugated paperboard in its June 12, 2007, questionnaire response; and (8) the Department neglected to deflate the whole fish surrogate value.

The Petitioners argue that the Department intended to value QVD's cartons using the non-corrugated paperboard surrogate value as explained in Comment 6C of the Issues and Decision Memorandum. Therefore, the Department should not value QVD's cartons using a corrugated paperboard surrogate value. The Petitioners also argue that QVD is incorrectly requesting that the Department deflate the fish surrogate value because this surrogate value is contemporaneous with the POR.

We agree that seven of the eight allegations constitute inadvertent ministerial errors pursuant to 19 C.F.R. 351.224(e). We disagree with QVD's allegation that the fish surrogate value should be deflated. Because the whole fish surrogate value source is from the financial statements of Gachihata Aquaculture Farms Ltd. covering the fiscal year period July 1, 2006 through June 30, 2007 and the POR is August 1, 2006 through July 31, 2007, there is significant overlap between the periods and, therefore, the data are considered contemporaneous. We also disagree with Petitioners that the Department correctly valued cartons using a non-corrugated surrogate value. In its questionnaire response QVD indicated that it used corrugated paperboard. See QVD's June 12, 2008, Questionnaire Response. As a result, we agree with QVD that the Department made a ministerial error in using a non-corrugated paperboard surrogate value for cartons pursuant to 19 C.F.R. 351.224(e). For a detailed discussion of the Department's analysis, see Memorandum to the File, through Alex Villanueva, Program Manager, AD/CVD Operations, Office 9, from Catherine Bertrand, Senior Case Analyst, AD/CVD Operations, Office 9: Analysis Memorandum for the Amended Final Results of QVD dated April 18, 2008.

Therefore, in accordance with section 751(h) of the Act, 19 CFR 351.224(e) and the CIT Order, we are amending the Final Results of the administrative review of certain frozen fish fillets from Vietnam. The final weighted-average dumping margins are as follows:

Certain Frozen Fish Fillets from Vietnam

Manufacturer/Exporter	Weighted-Average Margin (Percent)
ESS	0.00
QVD	0.00
CATACO	80.88

Cash Deposit Requirements

In this case, the weighted-average dumping margins for ESS and QVD did not change as a result of correcting the errors described above. Therefore, it is not necessary for the Department to amend the cash deposit instructions already submitted to the U.S. Customs and Border Protection (“CBP”) for ESS and QVD. With respect to CATACO, however, we will instruct CBP to collect antidumping duties for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption as provided for by section 751(a)(2)(C) of the Act, based on these amended final results, retroactively effective to March 24, 2008, the date of publication of the Final Results.

Assessment

Because the Department is currently enjoined from liquidation of any entries of subject merchandise exported by ESS and QVD, will not issue liquidation instructions to CBP until the conclusion of the litigation. CBP has already been instructed to liquidate CATACO's entries at the rate in effect at the time of entry.

These amended final results are published in accordance with sections 751(h) and 777(i)(1) of the Act.

Dated: August 12, 2008.

David M. Spooner,

Assistant Secretary for Import Administration.

Footnotes

1.  See Memorandum to the File, from Cindy Robinson, Senior Case Analyst, Office 9, Import Administration, Subject: Frozen Fish Fillets: Third Addition of Harmonized Tariff Number, (March 1, 2007). This HTS went into effect on March 1, 2007.

2.  See Memorandum to the File, from Cindy Robinson, Senior Case Analyst, Office 9, Import Administration, Subject: Frozen Fish Fillets: Third Addition of Harmonized Tariff Number, (March 1, 2007). This HTS went into effect on March 1, 2007.

3.  See Memorandum to the File, from Cindy Robinson, Senior Case Analyst, Office 9, Import Administration, Subject: Frozen Fish Fillets: Second Addition of Harmonized Tariff Number, (February 2, 2007). This HTS went into effect on February 1, 2007.

4.  See Memorandum to the File, from Cindy Robinson, Senior Case Analyst, Office 9, Import Administration, Subject: Frozen Fish Fillets: Addition of Harmonized Tariff Number, (January 30, 2007). This HTS went into effect on February 1, 2007.

5.  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.