[Federal Register Volume 68, Number 21 (Friday, January 31, 2003)]
[Notices]
[Pages 4986-4997]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-2331]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-552-801]


Notice of Preliminary Determination of Sales at Less Than Fair 
Value, Affirmative Preliminary Determination of Critical Circumstances 
and Postponement of Final Determination: Certain Frozen Fish Fillets 
From the Socialist Republic of Vietnam

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

EFFECTIVE DATE: January 31, 2003.

FOR FURTHER INFORMATION CONTACT: Alex Villanueva, Import 
Administration, International Trade Administration, U.S. Department of 
Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 
20230; telephone: (202) 482-3208.

Preliminary Determination

    We preliminarily determine that certain frozen fish fillets from 
the Socialist Republic of Vietnam are being, or are likely to be, sold 
in the United States at less than fair value (``LTFV''), as provided in 
section 733 of the Tariff Act of 1930, as amended (``the Act''). The 
estimated margins of sales at LTFV are shown in the ``Suspension of 
Liquidation'' section of this notice.

Case History

    On June 28, 2002, the Department of Commerce (``Department'') 
received a petition on imports of certain frozen fish fillets from the 
Socialist Republic of Vietnam (``Vietnam'') filed in proper form by 
Catfish Farmers of America (``CFA'') and the individual U.S. catfish 
processors America's Catch Inc.; Consolidated Catfish Co., L.L.C.; 
Delta Pride Catfish, Inc.; Harvest Select Catfish, Inc.; Heartland 
Catfish Company; Pride of the Pond; Simmons Farm Raised Catfish, Inc.; 
and Southern Pride Catfish Co., Inc., hereinafter referred to 
collectively as ``the petitioners.'' This investigation was initiated 
on July 18, 2002. See Notice of Initiation of Antidumping Duty 
Investigation: Certain Frozen Fish Fillets from the Socialist Republic 
of Vietnam (``Notice of Initiation''), 67 FR 48437 (July 24, 2002). The 
Department initiated the investigation using both a market economy and 
non-market economy analysis. For a further discussion of Vietnam's 
market analysis, please see the ``Non Market Economy Country Status'' 
section below. The Department set aside a period for all interested 
parties to raise issues regarding product coverage. See Notice of 
Initiation at 48437-38. We received comments regarding product coverage 
from interested parties. For a detailed discussion of the comments 
regarding the scope of the merchandise under investigation, please see 
the ``Scope of the Investigation'' section below.
    On August 8, 2002, the United States International Trade Commission 
(``ITC'') issued its affirmative preliminary determination that there 
is a reasonable indication that an industry in the United States is 
threatened with material injury by reason of imports from Vietnam of 
certain frozen fish fillets, which was published in the

[[Page 4987]]

Federal Register on August 15, 2002. See Certain Frozen Fish Fillets 
from Vietnam, 67 FR 53362 (August 15, 2002).
    On August 9, 2002, the Department requested quantity and value 
(``Q&V'') information from a total of fifty-three Vietnamese companies, 
which were identified in the Petition for the Imposition of Antidumping 
Duties: Frozen Fish Fillets from the Socialist Republic of Vietnam, 
dated June 28, 2002 (``Petition'') and for which the Department was 
able to locate contact information. On August 9, 2002, the Department 
also sent the Government of Vietnam a letter requesting assistance 
locating all known Vietnamese producers/exporters of frozen fish 
fillets who exported certain frozen fish fillets to the United States 
during the market (April 1, 2001 through March 31, 2002) and non-market 
(October 1, 2001 through March 31, 2002) economy periods of 
investigation and quantity and value information for all exports to the 
United States of the merchandise under investigation during the period 
of investigation. On August 20, 2002, we received a letter from Grobest 
Industrial (Vietnam) Co., Ltd., (``Grobest''), which indicated that 
Grobest did not sell certain frozen fish fillets to the United States 
during the market or non-market economy periods. On August 22, 2002, 
the Department received a letter from Minh Hai Sea Products Import and 
Export Corporation (``SEAPRIMEXCO''), which indicated that SEAPRIMEXCO 
did not sell certain frozen fish fillets to the United States during 
the market or non-market economy periods. Additionally, on August 23, 
2002, we received thirteen responses to our Q&V information request. 
The following thirteen companies submitted quantity and value 
information: An Giang Agriculture and Food Import Export Company 
(``Afiex''), An Giang Fisheries Import Export Joint Stock Company 
(``Agifish''), Ben Tre Frozen Aquaproduct Export Company (``Ben Tre''), 
Can Tho Agricultural and Animal Products Import Export Company 
(``CATACO''), Can Tho Animal Fishery Products Processing Export 
Enterprise (``CAFATEX''), Da Nang Seaproducts Import-Export Corporation 
(``Da Nang''), Mekong Fish Company (``Mekonimex''), Nam Viet Company 
Limited (``Nam Viet''), QVD Food Company Limited (``QVD''), Tien Gang 
Seaproduct Company (``Tieng Gang''), Viet Hai Seafood Company Limited 
(``Viet Hai''), Vinh Hoan Company Limited (``Vinh Hoan'') and Vinh Long 
Import-Export Company (``Vinh Long'').
    On August 27, 2002, the Department published a postponement of the 
preliminary antidumping duty determination on certain frozen fish 
fillets from Vietnam. See Notice of Postponement of the Preliminary 
Determination of the Certain Frozen Fish Fillets from the Socialist 
Republic of Vietnam Antidumping Duty Investigation (Notice of Prelim 
Postponement'') 67 FR 55003 (August 27, 2002).
    On August 30, 2002, the Department requested comments on surrogate 
country and factor valuation information in order to have sufficient 
time to consider them for the preliminary determination.
    On September 4, 2002, the Department issued its respondent 
selection memorandum, selecting Agifish, Vinh Hoan, Nam Viet and 
CATACO, hereinafter referred to collectively as ``the respondents,'' to 
be investigated. See Memorandum to the File from James C. Doyle, 
Program Manager to Edward C. Yang, Director, Office IX, Antidumping 
Duty Investigation of Certain Frozen Fish Fillets from the Socialist 
Republic of Vietnam: Selection of Respondents (``Respondent Selection 
Memo''), dated September 4, 2002.
    On September 4, 2002, the Department requested comments from 
parties regarding the appropriate physical characteristics of certain 
frozen fish fillets to be reported. On September 5, 2002, the 
petitioners requested a revision in the schedule for submission of 
surrogate country comments. On September 6, 2002 the respondents also 
requested an extension of time to submit surrogate country and factor 
value information. On September 9, 2002, the Department revised its 
schedule for submitting comments on the appropriate surrogate country.
    On September 11, 2002, the petitioners and the respondents 
submitted comments regarding the appropriate physical characteristics 
of certain frozen fish fillets. On September 13, 2002, the respondents 
submitted rebuttal comments regarding the appropriate physical 
characteristics of certain frozen fish fillets. On September 16, 2002, 
the Department sent the respondents Section A of the Department's 
market and non-market economy antidumping duty questionnaires. In 
addition, on September 16, 2002, we sent the Government of Vietnam 
Section A of the Department's market and non-market economy antidumping 
duty questionnaires.
    On September 18, 2002, the petitioners submitted rebuttal comments 
addressing the respondents' comments and rebuttal comments regarding 
the appropriate physical characteristics of certain frozen fish 
fillets.
    On September 23, 2002, the petitioners submitted a letter notifying 
the Department of increased shipments of subject merchandise to the 
United States in advance of the Department's preliminary determination 
in this proceeding, and accordingly, requested that the Department take 
action to collect information regarding entries of subject merchandise 
pursuant to section 732a(e) of the Act (19 U.S.C. 1673a(e)) and 19 CFR 
351.206(g).
    On September 23, 2002, the Department sent the respondents and the 
Government of Vietnam Sections B, C and E of the Department's market 
economy questionnaire and Sections C & D of the non-market economy 
questionnaire.
    On October 2, 2002, the respondents requested a two-week extension 
to file their Section A market economy and non-market economy 
questionnaire responses. On October 3, 2002, the Department granted a 
partial extension for the respondents to submit their Section A market 
economy and non-market economy questionnaire responses.
    On October 7, 2002, the petitioners requested an extension of time 
to submit a country-wide sales below cost allegation in the event the 
Department determines that Vietnam is to be treated as a market economy 
for antidumping duty purposes. On October 10, 2002, the respondents 
requested an additional extension to file Section A market and non-
market economy questionnaire responses. On October 15, 2002, the 
petitioners withdrew their October 7, 2002 request for an extension of 
the deadline to submit a country-wide sales below cost allegation. On 
October 15, 2002, the Department extended the deadline for the 
respondents to submit Section A market and non-market economy 
questionnaire responses. On October 15, 2002, the respondents submitted 
their Section A market and non-market economy responses. The Government 
of Vietnam did not provide a response.
    On October 23, 2002, the Department received Section A market and 
non-market economy responses from Afiex, Cafatex, Da Nang, Mekonimex, 
QVD, Viet Hai and Vinh Long, hereinafter referred to as ``the voluntary 
Section A respondents.'' On October 24, 2002, the petitioners submitted 
comments on the market and non-market economy Section A questionnaire 
responses. On October 24, 2002, the respondents requested an extension 
for filing the respondents' and the voluntary Section A respondents' 
non-market economy

[[Page 4988]]

Sections C and D questionnaire responses. On October 25, 2002, the 
Department issued supplemental Section A market and non-market economy 
questionnaires to the respondents and the voluntary Section A 
respondents. On October 28, 2002, the respondents requested an 
extension of time to submit responses to the Department's market and 
non-market economy supplemental Section A questionnaires. On October 
30, 2002, the Department granted the respondents' extension request for 
their responses to the market and non-market economy Sections C and D 
questionnaires.
    On November 5, 2002, the petitioners submitted comments regarding 
the voluntary Section A respondents' market and non-market economy 
responses. On November 6, 2002, the respondents requested an extension 
of time to submit their market economy Sections B and C of the 
questionnaires. On November 8, 2002, the petitioners requested an 
extension of time to submit surrogate country comments and factor value 
information. Additionally, on November 8, 2002, the Department 
determined that Vietnam will be treated as a non-market economy country 
for the purposes of antidumping and countervailing duty proceedings. 
See Memorandum for Faryar Shirzad, Assistant Secretary, Import 
Administration from Shauna Lee-Alaia, George Smolik, Athanasios 
Mihalakas and Lawrence Norton, Office of Policy through Albert Hsu, 
Senior Economist, Office of Policy, Import Administration, Jeffrey May, 
Director, Office of Policy, Import Administration, Antidumping Duty 
Investigation of Certain Frozen Fish Fillets from the Socialist 
Republic of Vietnam: Determination of Market Economy Status (``Market 
Status Memo''), dated November 8, 2002. For a more detailed discussion, 
please see the ``Non-Market Economy Status'' section below.
    On November 12, 2002, the Department sent the respondents and the 
voluntary Section A respondents a letter informing them that because 
the Department determined that Vietnam is to be treated as a non-market 
economy, the respondents and the voluntary Section A respondents were 
no longer required to submit Sections B, C & E of the market economy 
antidumping duty questionnaire sent on September 23, 2002. In addition, 
we stated that the respondents and the voluntary Section A respondents 
were no longer required to submit the market economy Section A 
supplemental questionnaire sent on October 25, 2002. On November 13, 
2002, the respondents submitted non-market economy Sections C & D 
questionnaire responses. All subsequent responses from the respondents 
and voluntary Section A respondents were responses to the non-market 
economy questionnaire.
    On November 14, 2002, the respondents submitted a letter agreeing 
to the extension of time request submitted by the petitioners on 
November 8, 2002 for purposes of submitting surrogate country comments 
and factor value information. On November 14, 2002, the Department 
granted an extension request for interested parties to submit surrogate 
country comments and factor value information.
    On November 15, 2002, the petitioners filed a formal critical 
circumstances allegation in accordance with 19 CFR 351.206(c)(2)(iii). 
For a more detailed discussion, please see the ``Critical 
Circumstances'' section below. On November 15, 2002, the Department 
issued a supplemental questionnaire on the respondents' Section D 
responses. On November 15, 2002, the respondents submitted their 
responses to the Department's Section A supplemental questionnaire.
    On November 18, 2002, the Department issued a Section A 
supplemental questionnaire to the voluntary Section A respondents. On 
November 22, 2002, the respondents submitted their responses to the 
Department's Section D supplemental questionnaire dated November 15, 
2002. On November 25, 2002, Agifish and Vinh Hoan submitted a 
correction to their factors of production database. On November 25, 
2002, the Department received an extension request to delay the 
submittal of the supplemental responses from the voluntary Section A 
respondents. Also on November 25, 2002, the Department requested that 
the respondents provide monthly shipment data for use in the critical 
circumstances determination.
    On December 2, 2002, the petitioners submitted comments regarding 
the respondents' Sections C and D questionnaire responses dated 
November 13, 2002. On December 6, 2002, the respondents requested an 
extension of time regarding the Department's request for monthly 
shipment data. Additionally, the voluntary Section A respondents 
requested an extension of time to submit their supplemental 
questionnaire responses. Also on December 6, 2002, the Department 
issued a Sections C and D supplemental questionnaire to the 
respondents. On December 6, 2002, the Department granted a second 
extension of time to submit surrogate country and factor value 
information. On December 6, 2002, the Ministry of Trade of Vietnam 
submitted comments regarding the surrogate country. On December 9, 
2002, the respondents and the petitioners submitted comments regarding 
surrogate country and factor value information. On December 9, 2002, 
the Department granted an extension of time to the voluntary Section A 
respondents to submit their supplemental responses and an extension of 
time for the respondents to submit monthly shipment data.
    On December 10, 2002, the petitioners submitted comments regarding 
the respondents' supplemental Section A questionnaire responses. On 
December 10, 2002, the respondents submitted the monthly shipment data 
requested by the Department on November 25, 2002 and supplemental 
questionnaire responses from the voluntary Section A respondents. On 
December 12, 2002, the petitioners submitted an additional financial 
statement to supplement the factor value information submitted on 
November 9, 2002.
    On December 13, 2002, the Ministry of Fisheries of Vietnam 
submitted comments regarding the selection of the surrogate country. On 
December 13, 2002, the Department granted an extension of time to 
submit rebuttal comments regarding the surrogate country and the factor 
value information. On December 18, 2002, the respondents requested an 
extension of time to submit their supplemental Sections C and D 
questionnaire responses. On December 18, 2002, the petitioners 
submitted rebuttal comments regarding the surrogate country and factor 
value information submitted by the respondents on December 9, 2002.
    On December 19, 2002, the respondents requested an extension of 
time to submit their supplemental Sections C and D questionnaire 
responses. On December 19, 2002, the Department granted the respondents 
an extension of time to submit their Section C and D supplemental 
questionnaire responses. Additionally, on December 19, 2002, the 
Department issued a second Section A supplemental questionnaire to the 
respondents. On December 20, 2002, the petitioners submitted comments 
regarding the voluntary Section A respondents' supplemental 
questionnaire responses. On December 27, 2002, the Department issued a 
second supplemental questionnaire to the voluntary Section A 
respondents. On December 31, 2002, the respondents and the voluntary 
Section A respondents requested an extension of time to submit their 
second supplemental questionnaire responses.

[[Page 4989]]

On January 2, 2003, the Department granted an extension of time to the 
respondents and the voluntary Section A respondents to submit their 
second Section A questionnaire responses. On January 8, 2003, Agifish, 
one of the respondents, submitted a revised Sections C and D 
supplemental response. On January 10, 2003, the Department issued a 
section Sections C and D supplemental questionnaire to the respondents. 
On January 10, 2003, the respondents submitted an extension of time to 
submit their second Sections C and D supplemental questionnaire 
responses. On January 14, 2003, the Department granted an extension of 
time to the respondents to submit their second Sections C and D 
supplemental questionnaire responses. On January 16, 2003, the 
petitioners submitted comments relevant to the Department's preliminary 
determination. On January 17, 2003, the respondents submitted their 
responses to the second Sections C & D supplemental questionnaire. Also 
on January 17, 2003, the respondents submitted a letter requesting the 
Department to reject the petitioners' submission of January 16, 2003 as 
untimely. On January 21, 2003, the respondents submitted comments 
requesting that the Department use their actual reported factors of 
production. On January 22, 2003, the petitioners submitted a letter 
requesting that the Department reject the respondents' January 16, 2003 
submission on the grounds that it was untimely filed. On January 23, 
2003, the respondents submitted a request that the Department not use 
the petitioners' recently filed submissions for the preliminary 
determination. Also on January 23, 2003, the respondents and the 
voluntary Section A respondents requested that the Department postpone 
the final determination until no later than 135 days after the date of 
publication of the preliminary determination.

Postponement of Final Determination

    Section 735(a) of the Act provides that a final determination may 
be postponed until no later than 135 days after the date of the 
publication of the preliminary determination if, in the event of an 
affirmative preliminary determination, a request for such postponement 
is made by exporters who account for a significant proportion of 
exports of the subject merchandise, or in the event of a negative 
preliminary determination, a request for such postponement is made by 
the petitioners. The Department's regulations, at 19 CFR 351.210(e)(2), 
require that requests by respondents for postponement of a final 
determination be accompanied by a request for an extension of the 
provisional measures from a four-month period to not more than six 
months.
    On January 23, 2003, the respondents and the voluntary Section A 
respondents requested that, in the event of an affirmative preliminary 
determination in this investigation, the Department postpone its final 
determination until 135 days after the publication of the preliminary 
determination. The respondents and the voluntary Section A respondents 
also included a request to extend the provisional measures to not more 
than six months after the publication of the preliminary determination. 
Accordingly, since we have made an affirmative preliminary 
determination, and the requesting parties account for a significant 
proportion of the exports of the subject merchandise, we have postponed 
the final determination until no later than 135 days after the date of 
publication of the preliminary determination, and are extending the 
provisional measures accordingly.

Period of Investigation

    The period of investigation (``POI'') is October 1, 2001 through 
March 31, 2002. This period corresponds to the two most recent fiscal 
quarters prior to the month of the filing of the Petition (June 28, 
2001). See 19 CFR 351.204(b)(1).

Scope of Investigation

    For purposes of this investigation, the product covered is frozen 
fish fillets, including regular, shank, and strip fillets, whether or 
not breaded or marinated, of the species Pangasius Bocourti, Pangasius 
Hypophthalmus (also known as Pangasius Pangasius), and Pangasius 
Micronemus. 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 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 \1\ (Frozen Sole Fillets) of 
the Harmonized Tariff Schedule of the United States (``HTSUS''). This 
investigation covers all frozen fish fillets meeting the above 
specification, regardless of tariff classification. Although the HTSUS 
subheadings are provided for convenience and customs purposes, our 
written description of the scope of this proceeding is dispositive.
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    \1\ The petitioners have included this tariff classification 
code because they believe that the merchandise under investigation 
is entering the United States under this classification based on 
previous uses of the term ``sole'' to describe Vietnamese basa and 
tra.
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    On August 13, 2002, the respondents submitted comments regarding 
the scope of this investigation. On August 22, 2002, the petitioners 
also submitted comments regarding the scope language. Citing a report 
from Tyson Roberts at the California Academy of Sciences and Bhavalit 
Vidthayanon, National Inland Fisheries Institute, the respondents 
argued that Pangasius Micronemus is an outdated and inaccurate 
designation that has not been used by the scientific community since 
the early 1990s. The respondents argued that biologists who specialize 
in the freshwater fish of Southeast Asia now include the fish once 
thought to belong to the separate species Pangasius Micronemus as part 
of the species Pangasius Hypopthalmus, a correct scientific designation 
that is already included in the scope of the antidumping investigation. 
Consequently, the respondents requested that the Department examined 
more closely the appropriateness of including Pangasius Micronemus in 
the scope of this antidumping investigation.
    The petitioners argue that Pangasius Micronemus must remain within 
the scope of this antidumping investigation. According to the 
petitioners, Pangasius Micronemus is a designation that has been, and 
continues to be, used to describe the species of fish that are being 
filleted, frozen and exported to the United States, and which are 
intended to be covered by the scope of this investigation. Referencing 
the company websites from some of the mandatory and voluntary Section A 
respondents in this investigation, the petitioners note that Pangasius 
Micronemus continues to be used interchangeably with the Pangasius 
Hypopthalmus species appellation. In addition, the petitioners note 
that the U.S. Food and Drug Administration continues to recognize 
Pangasius Micronemus as a separate scientific description.
    For this preliminary determination, we continue to include the 
species Pangasius Micronemus in the description of the scope. The 
evidence on the record clearly demonstrates that the producers/
exporters of the merchandise under investigation continue to market the 
species designation Pangasius Micronemus. For example, Afiex's (a 
voluntary Section A respondent) product brochure identifies Pangasius 
Micronemus as the live fish species used to produce the subject 
merchandise. Furthermore, the petitioners submitted a news article 
regarding Agifish, one of the

[[Page 4990]]

respondents, that mentions that it produces fish fillets from Pangasius 
Micronemus. Therefore, because the designation is clearly still in use 
commercially by the Vietnamese respondents, for purposes of this 
preliminary determination, we continue to include Pangasius Micronemus 
as part of the scope in this antidumping investigation.

Selection of Respondents

    Section 777A(c)(1) of the Act directs the Department to calculate 
individual dumping margins for each known exporter and producer of the 
subject merchandise. However, section 777A(c)(2) of the Act gives the 
Department discretion, when faced with a large number of exporters/
producers, to limit its examination to a reasonable number of such 
companies if it is not practicable to examine all companies. Where it 
is not practicable to examine all known producers/exporters of subject 
merchandise, this provision permits the Department to investigate 
either: (1) A sample of exporters, producers, or types of products that 
is statistically valid based on the information available to the 
Department at the time of selection; or (2) exporters/producers 
accounting for the largest volume of the merchandise under 
investigation that can reasonably be examined. After consideration of 
the complexities expected to arise in this proceeding and the resources 
available to the Department, we determined that it was not practicable 
in this investigation to examine all known producers/exporters of 
subject merchandise. Instead, we limited our examination to the four 
exporters and producers accounting for the largest volume of the 
subject merchandise pursuant to section 777A(c)(2)(B) of the Act. The 
four Vietnamese producers/exporters, Agifish, Vinh Hoan, Nam Viet and 
CATACO, accounted for a significant percentage of all exports of the 
subject merchandise from the Vietnam during the POI, and were therefore 
selected as mandatory respondents. See Respondent Selection Memo at 4.

Nonmarket Economy Country Status

    For purposes of initiation, the petitioners submitted LTFV analyses 
for Vietnam as a non-market economy and a market economy. See Notice of 
Initiation, at 48438. Because the petitioners alleged that Vietnam has 
a nonmarket economy, the Department invited parties to comment on 
Vietnam's economy with regards to the factors listed in section 
771(18)(B) of the Act, which the Department must take into account when 
making a non-market economy status determination. See Opportunity to 
Comment on Petitioner's Allegation that Vietnam Has a Non-Market 
Economy: Investigation of Certain Frozen Fish Fillets from the 
Socialist Republic of Vietnam (``Notice of Request for Comment''), 67 
FR 52942 (August 14, 2002). Consequently, on November 8, 2002, the 
Department determined, after analyzing comments from interested 
parties, that based on the preponderance of evidence related to 
economic reforms in Vietnam to date, analyzed as required under section 
771(18)(B) of the Act, that Vietnam will be treated as a non-market 
economy country for the purposes of antidumping and countervailing duty 
proceedings, effective July 1, 2001. See Market Status Memo at 44.
    A designation as a non-market economy remains in effect until it is 
revoked by the Department (see section 771(18)(C) of the Act). When the 
Department is investigating imports from a non-market economy, section 
773(c)(1) of the Act directs us to base the normal value on the non-
market economy producer's factors of production, valued in an 
economically comparable market economy that is a significant producer 
of comparable merchandise. The sources of individual factor prices are 
discussed under the ``Factor Valuations'' section, below.

Separate Rates

    In proceedings involving non-market economy countries, the 
Department begins with a rebuttable presumption that all companies 
within the country are subject to government control and thus should be 
assessed a single antidumping duty deposit rate. It is the Department's 
policy to assign all exporters of merchandise subject to investigation 
in a non-market economy country this single rate, unless an exporter 
can demonstrate that it is sufficiently independent so as to be 
entitled to a separate rate. The four companies that the Department 
selected to investigate (i.e., Agifish, Vinh Hoan, Nam Viet and 
CATACO), and the Vietnamese producers/exporters that were not selected 
as mandatory respondents by the Department for this investigation, but 
which have submitted separate rates responses and had exports sales to 
the United States during the POI (i.e. Afiex, CAFATEX, Da Nang, 
Mekonimex, QVD, and Viet Hai) have provided company-specific separate 
rates information and have each stated that they met the standards for 
the assignment of separate rates.
    We considered whether each Vietnamese company is eligible for a 
separate rate. The Department's separate rate test to determine whether 
the exporters are independent from government control does not 
consider, in general, macroeconomic/border-type controls, e.g., export 
licenses, quotas, and minimum export prices (``EP''), particularly if 
these controls are imposed to prevent dumping. The test focuses, 
rather, on controls over the investment, pricing, and output decision-
making process at the individual firm level. See Certain Cut-to-Length 
Carbon Steel Plate from Ukraine: Final Determination of Sales at Less 
than Fair Value, 62 FR 61754, 61757 (November 19, 1997) and Tapered 
Roller Bearings and Parts Thereof, Finished and Unfinished, from the 
People's Republic of China: Final Results of Antidumping Duty 
Administrative Review, 62 FR 61276, 61279 (November 17, 1997).
    To establish whether a firm is sufficiently independent from 
government control of its export activities to be entitled to a 
separate rate, the Department analyzes each entity exporting the 
subject merchandise under a test arising out of the Notice of 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 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''). In accordance with the 
separate rates criteria, the Department assigns separate rates in non-
market economy cases only if respondents can demonstrate the absence of 
both de jure and de facto governmental control over export activities.

1. 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; (2) any legislative 
enactments decentralizing control of companies; and (3) other formal 
measures by the government decentralizing control of companies. See 
Sparklers at 20589.
    Our analysis shows that the evidence on the record supports a 
preliminary finding of de jure absence of governmental control based 
on: (1) An absence of restrictive stipulations associated with the 
individual exporter's business and export licenses; (2) the applicable 
legislative enactments decentralizing control of the companies;

[[Page 4991]]

and (3) any other formal measures by the government decentralizing 
control of companies. See Memorandum to Joseph A. Spetrini, Deputy 
Assistant Secretary, Import Administration, Enforcement Group III from 
Joseph Welton, Lisa Shishido and Paul Walker, Case Analysts through 
James C. Doyle, Program Manager, Certain Frozen Fish Fillets from the 
Socialist Republic of Vietnam: Separate Rates for Producers/Exporters 
that Submitted Questionnaire Responses (``Separate Rates Memo''), dated 
January 24, 2003.

2. Absence of De Facto Control

    The Department typically considers four factors in evaluating 
whether each respondent is subject to de facto governmental control of 
its export functions: (1) Whether the export prices are set by or are 
subject to the approval of a governmental agency; (2) whether the 
respondent has authority to negotiate and sign contracts and other 
agreements; (3) whether the respondent has autonomy from the government 
in making decisions regarding the selection of management; and (4) 
whether the respondent retains the proceeds of its export sales and 
makes independent decisions regarding disposition of profits or 
financing of losses. See, Silicon Carbide, 59 FR at 22586-87; 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). The Department has determined that an analysis of 
de facto control is critical in determining whether respondents are, in 
fact, subject to a degree of governmental control which would preclude 
the Department from assigning separate rates.
    We determine that the evidence on the record supports a preliminary 
finding of de facto absence of governmental control based on record 
statements and supporting documentation showing that: (1) Each exporter 
sets its own export prices independent of the government and without 
the approval of a government authority; (2) each exporter retains the 
proceeds from its sales and makes independent decisions regarding 
disposition of profits or financing of losses; (3) each exporter has 
the authority to negotiate and sign contracts and other agreements; and 
(4) each exporter has autonomy from the government regarding the 
selection of management.
    Therefore, the evidence placed on the record of this investigation 
by Agifish, Vinh Hoan, Nam Viet, CATACO, Afiex, CAFATEX, Da Nang, 
Mekonimex, QVD and Viet Hai demonstrates an absence of government 
control, both in law and in fact, with respect to each of the 
exporter's exports of the merchandise under investigation, in 
accordance with the criteria identified in Sparklers and Silicon 
Carbide. As a result, for the purposes of this preliminary 
determination, we are granting separate, company-specific rates to each 
of the ten responding exporters which shipped certain frozen fish 
fillets to the United States during the POI. For a full discussion of 
this issue, please see the Separate Rates Memo.

Vietnam-Wide Rate

    The Department's review of import data from the United States 
Customs Service shows that imports of certain frozen fish fillets from 
Vietnam during the POI are higher than the volume and value of U.S. 
sales reported by exporters that responded to our request for this 
information. See Respondent Selection Memo, at Attachment I. Therefore, 
the Department preliminarily determines that there were exports of the 
merchandise under investigation from other Vietnamese producers/
exporters, which are treated as part of the countrywide entity. All 
exporters were given an opportunity to provide information showing they 
qualify for separate rates. However, none of these other exporters 
provided a response to the Department's Section A questionnaire.
    Section 776(a)(2) of the Act provides that if an interested party: 
(A) Withholds information that has been requested by the Department; 
(B) fails to provide such information in a timely manner or in the form 
or manner requested, subject to subsections 782(c)(1) and (e) of the 
Act; (C) significantly impedes a determination under the antidumping 
statute; or (D) provides such information but the information cannot be 
verified, the Department shall, subject to subsection 782(d) of the 
Act, use facts otherwise available in reaching the applicable 
determination. In this case, the government of Vietnam did not respond 
to the Department's questionnaire, thereby necessitating the use of 
facts available to determine their rate.
    Section 776(b) of the Act provides that, in selecting from among 
the facts available, the Department may employ adverse inferences if an 
interested party fails to cooperate by not acting to the best of its 
ability to comply with requests for information. See also ``Statement 
of Administrative Action'' accompanying the URAA, H.R. Rep. No. 103-
316, 870 (1994) (``SAA''). The Department finds that because the 
Vietnam-wide entity did not respond at all to our request for 
information, it has failed to cooperate to the best of its ability. 
Therefore, the Department preliminarily finds that, in selecting from 
among the facts available, an adverse inference is appropriate. 
Consistent with Department practice in cases where a respondent is 
considered uncooperative, as adverse facts available, we have applied a 
rate of 63.88 percent, the highest rate calculated in the initiation 
stage of the investigation from information provided in the petition 
(as adjusted by the Department). See, e.g., Notice of Preliminary 
Determination of Sales at Less Than Fair Value: Stainless Steel Wire 
Rod From Germany, 63 FR 10847 (March 5, 1998).
    Section 776(c) of the Act provides that, when the Department relies 
on secondary information rather than on information obtained in the 
course of an investigation as facts available, it must, to the extent 
practicable, corroborate that information from independent sources 
reasonably at its disposal. Secondary information is described in the 
SAA as ``information derived from the petition that gave rise to the 
investigation or review, the final determination concerning subject 
merchandise, or any previous review under section 751 concerning the 
subject merchandise.'' See SAA at 870. The SAA provides that to 
``corroborate'' means simply that the Department will satisfy itself 
that the secondary information to be used has probative value. See id. 
The SAA also states that independent sources used to corroborate may 
include, for example, published price lists, official import statistics 
and customs data, and information obtained from interested parties 
during the particular investigation. Id. As noted in Tapered Roller 
Bearings and Parts Thereof, Finished and Unfinished, from Japan, and 
Tapered Roller Bearings, Four Inches or Less in Outside Diameter, and 
Components Thereof, from Japan; Preliminary Results of Antidumping Duty 
Administrative Reviews and Partial Termination of Administrative 
Reviews, 61 FR 57391, 57392 (November 6, 1996) (``TRB Notice''), to 
corroborate secondary information, the Department will, to the extent 
practicable, examine the reliability and relevance of the information 
used.
    In order to determine the probative value of the initiation margin 
for use as facts otherwise available for the purposes of this 
determination, we examined evidence supporting the initiation 
calculations. We have now corroborated the information in the

[[Page 4992]]

petition, with some small changes. See Memorandum to Edward C. Yang, 
Director, Office IX from Alex Villanueva, Case Analyst through James C. 
Doyle, Program Manager, Preliminary Determination in the Investigation 
of Certain Frozen Fish Fillets from Vietnam, Corroboration Memorandum 
(``Corroboration Memo''), dated January 24, 2003.
    Consequently, we are applying a single antidumping rate--the 
Vietnam wide rate--to producers/exporters that failed to respond to the 
Q&V questionnaire and demonstrate entitlement to a separate rate. See, 
e.g., Final Determination of Sales at Less Than Fair Value: Synthetic 
Indigo from the People's Republic of China, 65 FR 25706, 25707 (May 3, 
2000). The Vietnam-wide rate applies to all entries of the merchandise 
under investigation except for entries from Agifish, Vinh Hoan, Nam 
Viet, CATACO, Afiex, CAFATEX, Da Nang, Mekonimex, QVD and Viet Hai.
    Because this is a preliminary margin, the Department will consider 
all margins on the record at the time of the final determination for 
the purpose of determining the most appropriate final Vietnam-wide 
margin. See Notice of Preliminary Determination of Sales at Less Than 
Fair Value: Saccharin from the People's Republic of China (``Saccharin 
from China''), 67 FR 79049, 79054 (December 27, 2002).

Margins for Cooperative Exporters Not Selected

    The exporters who responded to Section A of the Department's 
antidumping questionnaire and had sales of the merchandise under 
investigation to the United States, but were not selected as mandatory 
respondents in this investigation (Afiex, CAFATEX, Da Nang, Mekonimex, 
QVD and Viet Hai) have applied for separate rates, and provided 
information for the Department to consider for this purpose. Although 
the Department is unable, due to administrative constraints (see 
Respondent Selection Memo), to calculate for each of these voluntary 
Section A respondents who are exporters a rate based on their own data, 
these companies cooperated in providing all the information that the 
Department requested of them. Therefore, for Afiex, CAFATEX, Da Nang, 
Mekonimex, QVD and Viet Hai, we have calculated a weighted-average 
margin based on the rates calculated for those exporters that were 
selected to respond in this investigation, excluding any rates that are 
zero, de minimis or based entirely on adverse facts available. 
Companies receiving this rate are identified by name in the 
``Suspension of Liquidation'' section of this notice. See Notice of 
Preliminary Determination of Sales at Less Than Fair Value: Honey from 
the People's Republic of China, 64 FR 24101 (May 11, 2001).
    In addition, several companies indicated that during the POI, they 
had no sales of the merchandise under investigation to the United 
States. Specifically, Grobest, SEAPRIMEXCO, Tieng Gang and Ben Tre 
reported that they did not have sales of the merchandise under 
investigation to the United States during the POI. We note, moreover, 
that Vinh Long provided extensive separate rates information to the 
Department, but because the date of sale used in this investigation is 
the invoice date and because Vinh Long's only sale of the merchandise 
under investigation to the United States has a commercial invoice date 
outside the POI, Vinh Long did not make a sale of the merchandise under 
investigation to the United States during the POI. Consequently, Vinh 
Long is not eligible to receive a separate rate at this time. Likewise, 
because Grobest, SEAPRIMEXCO, Tieng Gang, Ben Tre and Vinh Long made no 
sales of the merchandise under investigation to the United States 
during the POI, these companies are not eligible to receive a separate 
rate.

Surrogate Country

    When the Department is investigating imports from a non-market 
economy country, section 773(c)(1) of the Act directs it to base NV, in 
most circumstances, on the non-market economy producer's factors of 
production, 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, the Department, in valuing the factors of 
production, shall utilize, to the extent possible, the prices or costs 
of factors of production in one or more market economy countries that: 
(1) Are at a level of economic development comparable to that of the 
non-market economy country; and (2) are significant producers of 
comparable merchandise. The sources of the surrogate factor values are 
discussed under the NV section below.
    The Department determined that India, Bangladesh, Kenya, Pakistan, 
and Guinea are countries comparable to Vietnam in terms of economic 
development. See Memorandum from Jeffrey May to James Doyle: 
Antidumping Duty Investigation on Certain Frozen Fish Fillets from the 
Socialist Republic of Vietnam, dated August 23, 2002. Customarily, we 
select an appropriate surrogate country based on the availability and 
reliability of data from the countries. In this case, we have found 
that Bangladesh is a significant producer of comparable merchandise, 
Pangasius fish, and is at a similar level of economic development 
pursuant to 733(c)(4) of the Act. See Memorandum to Edward C. Yang, 
Director, Office IX, from Alex Villanueva and Paul Walker, Case 
Analyst, through James C. Doyle, Program Manager: Antidumping Duty 
Investigation on Certain Frozen Fish Fillets from the Socialist 
Republic of Vietnam: Selection of a Surrogate Country (``Surrogate 
Country Memorandum''), dated January 24, 2003.
    Therefore, we used Bangladesh as the primary surrogate country and, 
accordingly, we have calculated NV using Bangladeshi prices to value 
the respondents' factors of production, when available and appropriate. 
Where Bangladeshi values were not available or were impracticable to 
use, we relied upon data from India, as adequate valuation data for 
each of the factors of production is available on the record from 
Indian sources. We have obtained and relied upon publicly available 
information wherever possible. See Memorandum to the File from Alex 
Villanueva, Lisa Shishido, Joseph Welton and Paul Walker, Case 
Analysts, through James C. Doyle, Program Manager and Edward C. Yang, 
Director, Office IX, Factors Valuation for An Giang Fisheries Import 
and Export Joint Stock Company, Can Tho Agricultural and Animal 
Products Import Export Company, Nam Viet Company Limited, and Vinh Hoan 
Company Limited (``Factor Valuation Memo''), dated January 24, 2003.
    In accordance with section 351.301(c)(3)(i) of the Department's 
regulations, for the final determination in an antidumping 
investigation, interested parties may submit publicly available 
information to value factors of production within 40 days after the 
date of publication of this preliminary determination.

Date of Sale

    Section 351.401(i) of the Department's regulations state that ``in 
identifying the date of sale of the subject merchandise or foreign like 
product, the Secretary normally will use the date of invoice, as 
recorded in the exporter or producer's records kept in the normal 
course of business.'' After examining the sales documentation placed on 
the record by the respondents, we preliminarily determine that invoice 
date is the most appropriate date of sale for all

[[Page 4993]]

respondents. We made this determination because, at this time, there is 
not enough evidence on the record to determine whether the contracts 
used by the respondents establish the material terms of sale to the 
extent required by our regulations in order to rebut the presumption 
that invoice date is the proper date of sale. See Saccharin from China 
at 67 FR 79054.

Fair Value Comparisons

    To determine whether sales of certain frozen fish fillets to the 
United States by Agifish, Vinh Hoan, Nam Viet and CATACO were made at 
less than fair value, we compared EP to NV, as described in the 
``Export Price'' and ``Normal Value'' sections of this notice. In 
accordance with section 777A(d)(1)(A)(i) of the Act, we calculated 
weighted-average EPs.

Export Price

    In accordance with section 772(a) of the Act, EP is the price at 
which the subject merchandise is first sold (or agreed to be sold) 
before the date of importation by the producer or exporter of the 
subject merchandise outside of the United States to an unaffiliated 
purchaser in the United States or to an unaffiliated purchaser for 
exportation to the United States, as adjusted under subsection (c).
    We calculated EP for Agifish, Vinh Hoan, Nam Viet and CATACO based 
on delivered prices to unaffiliated purchasers in the United States. We 
made deductions for movement expenses in accordance with section 
772(c)(2)(A) of the Act. These included foreign inland freight from the 
plant to the port of exportation, ocean freight and brokerage and 
handling, where appropriate.

Normal Value

    Section 773(c)(1) of the Act provides that the Department shall 
determine the NV using a factors-of-production methodology if: (1) The 
merchandise is exported from a non-market economy country; and (2) 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.
    As the basis for normal value, the respondents in this 
investigation provided integrated factors of production data from the 
fingerling stage to the frozen fish fillet processing stage. In 
response to a supplemental questionnaire, the respondents also provided 
factors of production information used in each of the production 
stages, including the frozen fish fillet processing stage, separately. 
Although the respondents reported the inputs used to produce the main 
input to the processing stage (live fish), for the purposes of this 
preliminary determination, we are not valuing those inputs when 
calculating the normal value. Rather, our normal value calculation 
begins with a valuation of the fish input (live fish) used to produce 
the merchandise under investigation for the following reasons.
    Our general policy, consistent with section 773(c)(1)(B) of the 
Act, is to value the factors of production that a respondent uses to 
produce the subject merchandise. If the NME respondent is an integrated 
producer, we take into account the factors utilized in each stage of 
the production process. For example, in the case of preserved canned 
mushrooms produced by a fully integrated firm, the Department valued 
the factors used to grow the mushrooms, the factors used to further 
process and preserve the mushrooms, and any additional factors used to 
can and package the mushrooms, including any used to manufacture the 
cans (if produced in-house). If, on the other hand, the firm was not 
integrated, but simply a processor that bought fresh mushrooms to 
preserve and can, the Department valued the purchased mushrooms and not 
the factors used to grow them. See final results valuation memorandum 
for Final Results of First New Shipper Review and First Antidumping 
Duty Administrative Review: Certain Preserved Mushrooms From the 
People's Republic of China; 66 FR 31204 (June 11, 2001) (Final Results 
Valuation Memorandum). This policy has been applied to both 
agricultural and industrial products. See, e.g., Persulfates From the 
People's Republic of China: Preliminary Results of Antidumping Duty 
Administrative Review and Notice of Partial Recission; 67 FR 50866 
(August 6, 2002) (unchanged in final) and Notice of Final 
Determinations of Sales at Less Than Fair Value: Brake Drums and Brake 
Rotors From the People's Republic of China; 62 FR 9160 (February 28, 
1997). Accordingly, our standard NME questionnaire asks respondents to 
report the factors used in the various stages of production.
    There are, however, two limited exceptions to this general rule. 
First, in some cases a respondent may report factors used to produce an 
intermediate input that accounts for a small or insignificant share of 
total output. The Department recognizes that, in those cases, the 
increased accuracy in our overall calculations that would result from 
valuing (separately) each of those factors may be so small so as to not 
justify the burden of doing so. Therefore, in those situations, the 
Department would value the intermediate input directly.
    Second, in certain circumstances, it is clear that attempting to 
value the factors used in a production process yielding an intermediate 
product would lead to an inaccurate result because a significant 
element of cost would not be adequately accounted for in the overall 
factors buildup. For example, in a recent case, we addressed whether we 
should value the respondent's factors used in extracting iron ore--an 
input to its wire rod factory. The Department determined that, if it 
were to use those factors, it would not sufficiently account for the 
capital costs associated with the iron ore mining operation given that 
the surrogate used for valuing production overhead did not have mining 
operations. Therefore, because ignoring this important cost element 
would distort the calculation, the Department declined to value the 
inputs used in mining iron ore and valued the iron ore instead. See 
Notice of Final Determination of Sales at Less Than Fair Value: Carbon 
and Certain Alloy Steel Wire Rod From Ukraine; 67 FR 55785 (August 30, 
2002); Final Determination of Sales at Less Than Fair Value: Certain 
Hot-Rolled Carbon Steel Flat Products From the People's Republic of 
China; 66 FR 49632 (September 28, 2001); Final Determination of Sales 
at Less Than Fair Value; Certain Cut-to-Length Carbon Steel Plate From 
the People's Republic of China; 62 FR 61964 (November 20, 1997); and 
Notice of Final Determination of Sales at Less Than Fair Value; 
Furfuryl Alcohol From the People's Republic of China; 60 FR 22544 (May 
8, 1995).
    In this investigation, we have determined at this time that the 
exceptions described above do not apply. However, we have carefully 
reviewed and analyzed the information submitted by each respondent and 
find that the data pertaining to the fish farming stage of production 
cannot be used for purposes of the preliminary determination. The 
respondents' integrated production is a multifaceted process that poses 
unique issues, particularly as the fish growth portion of the process 
occurs in an uncontrolled, river environment. Despite respondents' 
cooperation in providing significant information, certain critical 
questions regarding the data remain. These questions relate to the 
seasonality of the production of fish, the narrowness of the six-month 
period of investigation in relation to the growth cycle of the fish,

[[Page 4994]]

and the possible impact of the yield ratios at various stages of 
production. The Department's ability to analyze these issues was 
particularly constrained given the large number of supplemental 
questionnaires issued in this case and the lack of sufficient time to 
fully evaluate the responses to those questionnaires and issue any 
follow-up requests for information.
    In light of these concerns, we have not used the multi-stage factor 
data for the preliminary determination and have incorporated, instead, 
the value of the whole fish used at the filleting/processing stage of 
production. Subsequent to the preliminary determination, we will make 
every attempt to clarify the factors data for the fish farming stage of 
production that respondents have reported. If the questions raised can 
be addressed, we intend to revert to our standard methodology and use 
the factor information for the various stages. In that case, before the 
final determination, we will release to interested parties for comment 
a preliminary calculation sheet and analysis memorandum using that 
methodology.
    The factors of production for the frozen fish fillet processing 
stage included: (1) Hours of labor required; (2) quantities of raw 
materials employed; (3) amounts of energy and other utilities consumed; 
and (4) representative capital costs. We calculated NV based on factors 
of production, reported by each respondent, for materials, energy, 
labor, and packing. Where applicable, we deducted from each 
respondent's normal value the value of by-products sold during the POI. 
For a further discussion, see the analysis memorandum for each 
respondent. We valued the majority of input factors using publicly 
available published information as discussed in the ``Surrogate 
Country'' and ``Factor Valuations'' sections of this notice.

Factor Valuations

    The Department will normally use publicly available information to 
value factors of production. However, in accordance with 19 CFR 
351.408(c)(1), the Department's regulations also provide that where a 
producer sources an input from a market economy and pays for it in 
market economy currency, the Department employs the actual price paid 
for the input to calculate the factors-based NV. See Lasko Metal 
Products v. United States, 43 F. 3d 1442, 1445-1446 (Fed. Cir. 1994) 
(``Lasko'').
    In accordance with section 773(c) of the Act, we calculated NV 
based on factors of production reported by respondents for the POI. To 
calculate NV, the reported per-unit factor quantities were multiplied 
by publicly available Bangladeshi surrogate values (except as noted 
below). 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 surrogate freight costs to surrogate 
values using the shorter of the reported distance from the domestic 
supplier to the factory or the distance from the nearest seaport to the 
factory, 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 (Fed. Cir. 1997). For a detailed 
description of all surrogate values used for respondents, see Factor 
Valuation Memo.
    Certain raw material surrogate values were calculated using data 
from the 2000 Statistical Yearbook of Bangladesh (``Bangladesh 
government statistics''), published by the Bangladesh Bureau of 
Statistics, Planning Division, Ministry of Planning. The information 
represents cumulative values for the period of 2000, for inputs 
classified according to the Harmonized Commodity Description and Coding 
System (``HS''). Unit values were initially calculated in takas. Since 
the values were not contemporaneous with the POI, we adjusted the 
values for inflation and converted them to U.S. dollars using the 
Department's exchange rate for Bangladesh.
    Where Bangladeshi values were not available or were impracticable 
to use for raw materials inputs, we relied upon data from India, as 
adequate valuation data for each of these factors of production is 
available on the record from Indian sources. We also valued certain raw 
material inputs using weighted-average unit import values derived from 
the Monthly Trade Statistics of Foreign Trade of India--Volume II--
Imports (``Indian Import Statistics'') for the time period April 2001-
March 2002. As appropriate, we adjusted rupee-denominated values for 
inflation using wholesale price indices published in the International 
Monetary Fund's International Financial Statistics and excluded taxes.
    The Department decided to value live fish using data from the 
financial statement of a Bangladeshi company that produces Pangasius 
fish, Gachihata Aquaculture Farms Limited (``Gachihata''). The data 
from Gachihata was specific to the price for sales of Pangasius fish, 
the input in question. In addition, while the financial report was not 
contemporaneous with the POI, it was for the fiscal year ending June 
30, 2001, which is reasonably close to the POI. To calculate the 
surrogate value for live fish, the Department adjusted Gachihata's 
value for Pangasius fish in takas for inflation and converted the value 
to U.S. dollars, to arrive at a value of $1.23 USD/kg. See Factor 
Valuation Memo Exhibit 1 for CPI data, Exhibit 2 for exchange rate, and 
Exhibit 3 for the live fish calculation. See petitioners' December 18, 
2002 submission, Exhibit 2, for Gachihata's complete financial 
statement.
    In valuing live fish, the Department did not use the data from the 
financial statements of another Bangladeshi company, Dhaka Fisheries 
Ltd. (``Dhaka''), because although it appeared to produce Pangasius 
fish as its main fish product, the data represented the company's 
valuation of its fish inventory. As the Department prefers the use of 
actual sales data rather than inventory data, use of this source is 
less than ideal. See petitioners' December 18, 2002 submission, Exhibit 
4, for Dhaka's complete financial statement.
    The Department also did not use a proposed value for live fish in 
Bangladesh based on the financial statement of another Bangladeshi 
company submitted by the respondents, Beximco Fisheries Limited 
(``Beximco''), because it represented the company's valuation of its 
fish inventory, and it was not specific to the input in question. The 
data submitted by the respondents was listed as a value for ``fish'' in 
the financial report, without specifying the species. See respondents' 
December 9, 2002 submission, Exhibit 7. In response to a supplemental 
questionnaire, respondents stated that ``there is insufficient 
information on Beximco's financial statement to determine precisely 
whether or not the values for ``fish'' and ``fish feed'' are specific 
to the production of Pangasius fish.'' See respondents'' January 7, 
2002 submission, page 12.
    To value electricity, we used data from Bangladesh government 
statistics. The unit value was initially calculated in takas. Since the 
value was not contemporaneous with the POI, we adjusted the rate for 
inflation and converted the rate to U.S. dollars using the Department's 
exchange rate for Bangladesh. See Factor Valuation Memorandum at page 
6.
    As Bangladeshi values were not available or were impracticable for 
use to value water, we relied upon data from India as adequate 
valuation data for this factor of production is available on the record 
from Indian sources. To value water, we used data reported as the 
average water tariff rate for four cities in

[[Page 4995]]

India as reported in the Asian Development Bank's Second Water 
Utilities Data Book: Asian and Pacific Region published in 1997. 
Because the data from this source was not contemporaneous with the POI, 
we adjusted the rate for inflation. See Factor Valuation Memorandum at 
page 6.
    For domestic inland freight (truck), we used data from Bangladesh 
government statistics. The unit value was initially calculated in 
takas. Since the value was not contemporaneous with the POI, we 
adjusted the rate for inflation and converted the rate to U.S. dollars 
using the Department's exchange rate for Bangladesh.
    Our treatment of by-products is in accordance with the Department's 
practice. See Notice of Final Determination of Sales at Less Than Fair 
Value: Certain Hot-Rolled Steel Flat Products from the Peoples' 
Republic of China and accompanying Issues and Decision Memorandum, 66 
FR 49632 (September 28, 2001) at Comment 3. (``In the case of Angang 
and Benxi, we allowed recovery/by-product credits where the company 
provided information demonstrating that the recoveries/by-products were 
sold and/or reused in the production process.'') Where a respondent 
provided evidence that the by-product generated during the frozen fish 
fillet processing stage of the production was sold, we valued that by-
product using a surrogate value. If a respondent claimed that it sold a 
by-product generated during the frozen fish fillet processing stage, 
but did not provide evidence that the by-product generated was sold, we 
could not include the by-product offset in the calculation. Several of 
the respondents reported that certain by-products were reintroduced 
into the production process. If the by-product was reintroduced into 
the production process at any stage, we granted the by-product offset 
in an amount no greater than the volume actually re-introduced into the 
production process during the POI. See Factor Valuation Memo at 7.
    To value factory overhead, selling, general and administrative 
expenses (``SG&A''), and profit, we calculated surrogate financial 
ratios based on the financial information from Apex Foods, Limited, a 
Bangladeshi seafood processor. See Factor Valuation Memorandum at page 
7.
    For labor, consistent with section 351.408(c)(3) of the 
Department's regulations, we used the Vietnam regression-based wage 
rate at Import Administration's home page, Import Library, Expected 
Wages of Selected NME Countries, revised in September 2002 (see http://ia.ita.doc.gov/wages/index.html). The source of the wage rate data on 
the Import Administration's Web site can be found in the Yearbook of 
Labour Statistics 2000, International Labor Office (Geneva: 2000), 
Chapter 5B: Wages in Manufacturing.

Critical Circumstances

    On November 15, 2002, petitioners alleged that there is a 
reasonable basis to believe or suspect critical circumstances exist 
with respect to the antidumping investigations of certain frozen fish 
fillets from Vietnam. In accordance with 19 CFR 351.206(c)(2)(i), 
because petitioners submitted critical circumstances allegations more 
than 20 days before the scheduled date of the preliminary 
determination, the Department must issue preliminary critical 
circumstances determinations not later than the date of the preliminary 
determination.
    Section 733(e)(1) of the Act provides that the Department will 
preliminarily determine that critical circumstances exist if there is a 
reasonable basis to believe or suspect that: (A)(i) There is a history 
of dumping and material injury by reason of dumped imports in the 
United States or elsewhere of the subject merchandise; or (ii) the 
person by whom, or for whose account, the merchandise was imported knew 
or should have known that the exporter was selling the subject 
merchandise at less than its fair value and that there was likely to be 
material injury by reason of such sales; and, (B) there have been 
massive imports of the subject merchandise over a relatively short 
period. Section 351.206(h)(1) of the Department's regulations provides 
that, in determining whether imports of the subject merchandise have 
been ``massive,'' the Department normally will examine: (i) The volume 
and value of the imports; (ii) seasonal trends; and (iii) the share of 
domestic consumption accounted for by the imports. In addition, section 
351.206(h)(2) of the Department's regulations provides that an increase 
in imports of 15 percent during the ``relatively short period'' of time 
may be considered ``massive.'' Section 351.206(i) of the Department's 
regulations defines ``relatively short period'' as normally being the 
period beginning on the date the proceeding begins (i.e., the date the 
petition is filed) and ending at least three months later. The 
regulations also provide, however, that if the Department finds 
importers, exporters, or producers had reason to believe, at some time 
prior to the beginning of the proceeding, that a proceeding was likely, 
the Department may consider a period of not less than three months from 
that earlier time.
    In determining whether the relevant statutory criteria have been 
satisfied, we considered: (i) The evidence presented by petitioners in 
their November 15, 2002 letter; (ii) new evidence obtained since the 
initiation of the less-than-fair-value (``LTFV'') investigation (i.e., 
additional import statistics released by the U.S. Census Bureau); and 
(iii) the ITC's preliminary threat of injury determination.
    To determine whether there is a history of injurious dumping of the 
merchandise under investigation, in accordance with section 
733(e)(1)(A)(i) of the Act, the Department normally considers evidence 
of an existing antidumping duty order on the subject merchandise in the 
United States or elsewhere to be sufficient. See Preliminary 
Determination of Critical Circumstances: Steel Concrete Reinforcing 
Bars From Ukraine and Moldova, 65 FR 70696 (November 27, 2000). With 
regard to imports of certain frozen fish fillets from Vietnam, 
petitioners make no specific mention of a history of dumping for 
Vietnam. We are not aware of any antidumping order in the United States 
or in any country on certain frozen fish fillets from Vietnam. For this 
reason, the Department does not find a history of injurious dumping of 
the subject merchandise from Vietnam pursuant to section 
733(e)(1)(A)(i) of the Act.
    In determining whether there is a reasonable basis to believe or 
suspect that an importer knew or should have known the exporter was 
selling certain frozen fish fillets at less than fair value, the 
Department normally considers margins of 25 percent or more for export 
price sales or 15 percent or more for constructed export price 
transactions sufficient to impute knowledge of dumping. See, e.g., 
Preliminary Determination of Sales at Less Than Fair Value: Certain 
Cut-to-Length Carbon Steel Plate from the People's Republic of China, 
62 FR 31972, 31978 (October 19, 2001). The Department normally bases 
its preliminary decision with respect to knowledge on the margins 
calculated in the preliminary determination. Because the preliminary 
dumping margins for all exporters are greater than 25 percent, we find 
there is a reasonable basis to impute to importer knowledge of dumping 
with respect to all imports from Vietnam.
    In determining whether there is a reasonable basis to believe or 
suspect an importer knew or should have known there was likely to be 
material injury by reason of dumped imports, the Department normally 
will look to the

[[Page 4996]]

preliminary injury determination of the Commission. If the Commission 
finds a reasonable indication of present material injury to the 
relevant U.S. industry, the Department will normally determine a 
reasonable basis exists to impute importer knowledge that there was 
likely to be material injury by reason of dumped imports. See, e.g., 
Final Determination of Sales at Less Than Fair Value: Certain Cut-to-
Length Carbon Steel Plate from the People's Republic of China, 62 FR 
61967 (November 20, 1997). If, as in this case, the Commission 
preliminarily finds threat of material injury, the Department will also 
consider: (1) The extent of the increase in the volume of imports of 
the subject merchandise during the critical circumstances period and 
(2) the magnitude of the margins in determining whether a reasonable 
basis exists to impute knowledge that material injury was likely. (See 
Preliminary Determination of Sales at Less Than Fair Value; Certain 
Cut-to-Length Carbon Steel Plate from the People's Republic of China, 
62 FR 31972 (June 11, 1997); Preliminary Determination of Sales at Less 
Than Fair Value, Certain Cut-to-Length Carbon Steel Plate from the 
Russian Federation, 62 FR 31967 (June 11, 1997); Preliminary 
Determination of Sales at Less Than Fair Value, Certain Cut-To-Length 
Carbon Steel Plate from Ukraine, 62 FR 31958 (June 11, 1997).
    In determining whether there are ``massive imports'' over a 
``relatively short period,'' pursuant to section 733(e)(1)(B) of the 
Act, the Department normally compares the import volumes of the subject 
merchandise for at least three months immediately preceding the filing 
of the petition (i.e., the ``base period'') to a comparable period of 
at least three months following the filing of the petition (i.e., the 
``comparison period''). However, as stated in section 351.206(i) of the 
Department's regulations, if the Secretary finds importers, exporters, 
or producers had reason to believe at some time prior to the beginning 
of the proceeding that a proceeding was likely, then the Secretary may 
consider a time period of not less than three months from that earlier 
time. Imports normally will be considered massive when imports during 
the comparison period have increased by 15 percent or more compared to 
imports during the base period.
    For the reasons set forth in the Critical Circumstances Memorandum, 
we find sufficient bases exist for finding importers, or exporters, or 
producers knew or should have known antidumping cases were pending on 
certain frozen fish fillet imports from Vietnam by May 2002 at the 
latest. Accordingly, we determined December 2001 through April 2002 
should serve as the ``base period,'' while May 2002 through September 
2002 should serve as the ``comparison period'' in determining whether 
or not imports have been massive in the comparison period.
    In this case, the volume of imports of certain frozen fish fillets 
from Vietnam increased 72.91 percent from the critical circumstances 
base period (May 2002 to September 2002) to the critical circumstances 
comparison period (December 2001 to April 2002), nearly five times the 
level of increase needed to find ``massive imports.'' Furthermore, the 
preliminary dumping margins range from 37.94 to 61.88 percent for the 
mandatory respondents.
    Based on the Commission's preliminary determination of threat of 
injury, the increase in the volume of imports of subject merchandise 
noted above, and the high margins from the preliminary dumping margins, 
the Department preliminarily finds that there is a reasonable basis to 
believe or suspect that the importer knew or should have known that 
there was likely to be material injury by means of sales at less than 
fair value of certain frozen fish fillets from Vietnam.
    Pursuant to 19 CFR 351.206(h), we found imports increased by more 
than 15 percent for the respondent Nam Viet and for the Vietnam-wide 
entity as a whole, but did not increase by more than 15 percent for the 
respondents Agifish, Vinh Hoan, and CATACO. We therefore, find that 
imports of subject merchandise were massive in the comparison period 
for Nam Viet, but not for Agifish, Vinh Hoan, or CATACO.
    The Department does not have the individual monthly shipment data 
necessary to determine if there were massive imports from the six non-
selected respondents at this time. While the Department has, in the 
past, utilized the experience of the mandatory respondents to inform 
its judgement regarding the non-selected respondents, in this case, 
there are mixed results among the mandatory respondents. Moreover, the 
results for the majority of the mandatory respondents are at odds with 
the broader Customs data available to the Department. Consequently, the 
Department has determined that the most appropriate action would be to 
obtain producer-specific shipment data from the non-selected 
respondents to form the basis of its analysis.
    In addition, we find that imports of subject merchandise were 
massive in the comparison period for the Vietnam-wide entity. See the 
Critical Circumstances Memorandum for more detailed information.
    In summary, we find there is a reasonable basis to believe or 
suspect importers had knowledge of dumping and the likelihood of 
material injury with respect to imports of certain frozen fish fillets 
from Vietnam. We further find there have been massive imports of 
certain frozen fish fillets over a relatively short period from 
respondent Nam Viet. However, such imports have been found to be not 
massive over a relatively short period from Agifish, Vinh Hoan and 
CATACO. In addition, we find that imports of certain frozen fish 
fillets have been massive over a relatively short period from the 
Vietnam-wide entity.
    Given the analysis summarized above, and described in more detail 
in the Critical Circumstances Memorandum, we preliminarily determine 
critical circumstances exist for imports of certain frozen fish fillets 
from Nam Viet and the Vietnam-wide entity. We will publish our 
preliminary critical circumstances decision with respect to Afiex, 
Cafatex, Da Nang, Mekonimex, QVD, and Viet Hai as soon as we have 
obtained the additional data.
    In accordance with section 733(e)(2) of the Act, upon issuance of 
an affirmative preliminary determination of sales at less than fair 
value in the investigation with respect to imports of certain frozen 
fish fillets from Vietnam, the Department will direct the U.S. Customs 
Service (Customs) to suspend liquidation of all entries of certain 
frozen fish fillets from Vietnam (excluding entries from Agifish, Vinh 
Hoan, CATACO, Afiex, Cafatex, Da Nang, Mekonimex, QVD, and Viet Hai) 
that are entered, or withdrawn from warehouse, for consumption on or 
after 90 days prior to the date of publication in the Federal Register 
of our preliminary determinations in these investigations. Customs 
shall require a cash deposit or posting of a bond equal to the 
estimated preliminary dumping margins reflected in the preliminary 
determinations published in the Federal Register. The suspension of 
liquidation to be issued after our preliminary determination will 
remain in effect until further notice.
    We will make a final determination concerning critical 
circumstances for all producers and exporters of subject merchandise 
from Vietnam when we make our final dumping determinations in this 
investigation, which will be 135 days after issuance of the preliminary 
dumping determination.
    The weighted-average dumping margins are as follows:

[[Page 4997]]



                Certain Frozen Fish Fillets From Vietnam
------------------------------------------------------------------------
                                                              Weighted-
                                                               average
               Producer/manufacturer/exporter                   margin
                                                              (percent)
------------------------------------------------------------------------
Agifish....................................................        61.88
Vinh Hoan..................................................        37.94
Nam Viet...................................................        53.96
CATACO.....................................................        41.06
Afiex......................................................        49.16
CAFATEX....................................................        49.16
Da Nang....................................................        49.16
Mekonimex..................................................        49.16
QVD........................................................        49.16
Viet Hai...................................................        49.16
Vietnam Wide Rate..........................................        63.88
------------------------------------------------------------------------

Verification

    As provided in section 782(I)(1) of the Act, we intend to verify 
all company information relied upon in making our final determination.

Suspension of Liquidation

    In accordance with section 733(d) of the Act, we are directing the 
U.S. Customs Service to suspend liquidation of all imports of subject 
merchandise, entered, or withdrawn from warehouse, for consumption on 
or after the date of publication of this notice in the Federal Register 
with respect to Agifish, Vinh Hoan, CATACO, Afiex, Cafatex, Da Nang, 
Mekonimex, QVD and Viet Hai. We will instruct U.S. Customs Service to 
require a cash deposit or the posting of a bond equal to the weighted-
average amount by which the NV exceeds EP, as indicated above. With 
respect to Nam Viet and all other Vietnam exporters, the Department 
will direct the U.S. Customs Service to suspend liquidation of all 
entries of certain frozen fish fillets from Vietnam that are entered, 
or withdrawn from warehouse, for consumption on or after 90 days prior 
to the date of publication in the Federal Register of our preliminary 
determinations in these investigations. Customs shall require a cash 
deposit or posting of a bond equal to the estimated preliminary dumping 
margins reflected in the preliminary determinations published in the 
Federal Register. The suspension of liquidation to be issued after our 
preliminary determination will remain in effect until further notice. 
These suspension of liquidation instructions will remain in effect 
until further notice.

International Trade Commission Notification

    In accordance with section 733(f) of the Act, we have notified the 
ITC of the Department's preliminary affirmative determination of sales 
at less than fair value. If our final determination is affirmative, the 
ITC will determine before the later of 120 days after the date of this 
preliminary determination or 45 days after our final determination 
whether the domestic industry in the United States is materially 
injured, or threatened with material injury, by reason of imports of 
certain frozen fish fillets, or sales (or the likelihood of sales) for 
importation, of the subject merchandise.

Public Comment

    In accordance with 19 CFR 351.301(c)(3), interested parties may 
submit publicly available information to value the factors of 
production for purposes of the final determination within 40 days after 
the date of publication of this preliminary determination. Case briefs 
or other written comments may be submitted to the Assistant Secretary 
for Import Administration no later than fifty days after the date of 
publication of this notice, and rebuttal briefs, whose content is 
limited to issues raised in case briefs, no later than fifty-five days 
after the date of publication of this preliminary determination. See 19 
CFR 351.309(c)(1)(i); 19 CFR 351.309(d)(1). A list of authorities used 
and an executive summary of issues should accompany any briefs 
submitted to the Department. This summary should be limited to five 
pages total, including footnotes.
    In accordance with section 774 of the Act, we will hold a public 
hearing, if requested, to afford interested parties an opportunity to 
comment on arguments raised in case or rebuttal briefs. If a request 
for a hearing is made, we will tentatively hold the hearing two days 
after the deadline of submission of rebuttal briefs at the U.S. 
Department of Commerce, 14th Street and Constitution Avenue, NW., 
Washington, DC 20230, at a time and location to be determined. Parties 
should confirm by telephone the date, time, and location of the hearing 
two days before the scheduled date.
    Interested parties who wish to request a hearing, or to participate 
if one is requested, must submit a written request to the Assistant 
Secretary for Import Administration, U.S. Department of Commerce, Room 
1870, within 30 days of the date of publication of this notice. See 19 
CFR 351.310(c). Requests should contain: (1) The party's name, address, 
and telephone number; (2) the number of participants; and (3) a list of 
the issues to be discussed. At the hearing, each party may make an 
affirmative presentation only on issues raised in that party's case 
brief, and may make rebuttal presentations only on arguments included 
in that party's rebuttal brief.
    This determination is issued and published in accordance with 
sections 733(f) and 777(i)(1) of the Act.

    Dated: January 24, 2003.
Faryar Shirzad,
Assistant Secretary for Import Administration.
[FR Doc. 03-2331 Filed 1-30-03; 8:45 am]
BILLING CODE 3510-DS-P