[Federal Register Volume 68, Number 102 (Wednesday, May 28, 2003)]
[Notices]
[Pages 31681-31683]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-13260]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-552-801]


Notice of Affirmative Preliminary Determination of Critical 
Circumstances for Voluntary Section A Respondents: Certain Frozen Fish 
Fillets From the Socialist Republic of Vietnam

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

ACTION: Preliminary Critical Circumstances Determination.

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EFFECTIVE DATE: May 28, 2003.

FOR FURTHER INFORMATION CONTACT: Alex Villanueva or James C. Doyle, AD/
CVD Enforcement Group III, Office 9, Import Administration, 
International Trade Administration, U.S. Department of Commerce, 14th 
Street and Constitution Avenue, NW., Washington, DC 20230; telephone: 
(202) 482-3208, or (202) 482-0159, respectively.

Critical Circumstances

    On November 15, 2002, the 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,'' 
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 section 
351.206(c)(2)(i) of the Department's regulations, because the 
petitioners submitted critical circumstances allegations more than 20 
days before the scheduled date of the preliminary determination, the 
Department of Commerce (``Department'') must issue preliminary critical 
circumstances determinations not later than the date of the preliminary 
determination.
    On January 24, 2003, the Department determined that, pursuant to 
section 733(e) of the Tariff Act of 1930, as amended (``the Act''), 
preliminary critical circumstances exist for the four mandatory 
respondents: An Giang Fisheries Import Export Joint Stock Company 
(``Agifish''), Can Tho Agricultural and Animal Products Import Export 
Company (``CATACO'') Nam Viet Company Limited (``Nam Viet''), Vinh Hoan 
Company Limited (``Vinh Hoan''), as well as for the Vietnam-wide 
entity. However, at that time, we did not make critical circumstances 
determinations for the six voluntary Section A respondents with 
preliminary separate rates \1\: An Giang Agriculture and Food Import 
Export Company (``Afiex''), Can Tho Animal Fishery Products Processing 
Export Enterprise (``CAFATEX''), Da Nang Seaproducts Import-Export 
Corporation (``Da Nang''), Mekong Fish Company (``Mekonimex''), QVD 
Food Company Limited (``QVD''), and Viet Hai Seafood Company Limited 
(``Viet Hai''). Consequently, the Department determined that the most 
appropriate action was to obtain producer-specific shipment data from 
the non-selected respondents to form the basis of its analyses, and to 
publish the preliminary critical circumstances determinations with 
respect to the voluntary Section A respondent companies upon obtaining 
the additional data. (See 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, 68 FR 4986, 
(January 31, 2003)).
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    \1\ Vinh Long Import-Export Company submitted a Section A 
response, but did not receive a preliminary separate rate, and 
therefore does not receive a preliminary critical circumstances 
determination.
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    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 International Trade Commission's (``ITC'') preliminary threat 
of injury determination.
    To determine whether there is a history of injurious dumping of the

[[Page 31682]]

merchandise under investigation, in accordance with section 
733(e)(1)(A)(i) of the Act, the Department normally considers the 
existence of a current or recent antidumping duty order on the subject 
merchandise in the United States or elsewhere to be sufficient. See 
Preliminary Determination of Sales at Less Than Fair Value: Refined 
Brown Aluminum Oxide from the People's Republic of China, 68 FR 23966 
(May 6, 2003). With regard to imports of certain frozen fish fillets 
from Vietnam, the 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 elsewhere 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 the six voluntary Section A respondents with 
separate rates are greater than 25 percent, we find there is a 
reasonable basis to impute knowledge of dumping with respect to these 
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 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 Memorandum for Joseph A. Spetrini, 
Deputy Assistant Secretary for Import Administration, Group III, from 
Edward Yang, Director, Office IX, Antidumping Duty Investigation of 
Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: 
Preliminary Affirmative Determination of Critical Circumstances for 
Voluntary Section A Respondents (``Voluntary Critical Circumstances 
Memo''), we find sufficient bases exist for finding that importers, or 
exporters, or producers knew or should have known an antidumping case 
was 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 this case, the volume of imports of certain frozen fish fillets 
from Vietnam increased 72.91 percent from the critical circumstances 
base period (December 2001 to April 2002) to the critical circumstances 
comparison period (May 2002 to September 2002), nearly five times the 
level of increase needed to find ``massive imports.'' Furthermore, the 
amended preliminary dumping margins range from 31.45 to 41.06 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 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 section 351.206(h) of the Department's regulations, we 
will not consider imports to be massive unless imports in the 
comparison period have increased by at least 15 percent over imports in 
the base period. On January 29, 2003, the Department requested company 
specific shipment data from the seven voluntary Section A respondent 
companies in order to determine whether there have been massive imports 
from these respondents. On February 10, 2003 and February 12, 2003, the 
Department received company-specific data from the seven voluntary 
Section A respondents. When we compared the import data during the base 
period with the comparison period for the six companies with 
preliminary separate rates, we found imports increased by more than 15 
percent for QVD, Da Nang, Afiex, Cafatex, but did not increase by more 
than 15 percent for Viet Hai and Mekonimex. We therefore find that 
imports of subject merchandise were massive in the comparison period 
for QVD, Da Nang, Afiex, and Cafatex, but not for Viet Hai and 
Mekonimex.
    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 
respondents QVD, Da Nang, Afiex, and Cafatex. However, such imports 
have been found

[[Page 31683]]

to be not massive over a relatively short period from Viet Hai and 
Mekonimex.
    Given the analysis summarized above, and described in more detail 
in the Voluntary Critical Circumstances Memo, we preliminarily 
determine that critical circumstances exist for imports of certain 
frozen fish fillets from QVD, Da Nang, Afiex, and Cafatex.
    In accordance with section 733(e)(2) of the Act, the Department 
will direct the U.S. Customs Service (as of March 1, 2003, renamed the 
U.S. Bureau of Customs and Border Protection) (``Customs'') to suspend 
liquidation of all entries of certain frozen fish fillets from QVD, Da 
Nang, Afiex, and Cafatex that are entered, or withdrawn from warehouse, 
for consumption on or after November 2, 2002. Customs shall require a 
cash deposit or posting of a bond equal to the estimated preliminary 
dumping margins reflected in the amended preliminary determinations 
published in the Federal Register. The suspension of liquidation will 
remain in effect until further notice.
    We will make a final determination concerning critical 
circumstances for all producers and exporters of the subject 
merchandise from Vietnam when we make our final dumping determinations 
in this investigation, which will be 135 days after publication of the 
preliminary dumping determination.
    This notice is published pursuant to section 777(i) of the Act.

    Dated: May 19, 2003.
Joseph A. Spetrini,
Acting Assistant Secretary for Import Administration.
[FR Doc. 03-13260 Filed 5-27-03; 8:45 am]
BILLING CODE 3510-DS-P