[Federal Register Volume 68, Number 142 (Thursday, July 24, 2003)]
[Notices]
[Pages 43713-43715]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-18860]



[[Page 43713]]

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DEPARTMENT OF COMMERCE

International Trade Administration

[A-552-801]


Notice of Amended Final Antidumping Duty Determination of Sales 
at Less Than Fair Value: Certain Frozen Fish Fillets from the Socialist 
Republic of Vietnam

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

ACTION: Amended Final Antidumping Duty Determination of Sales at Less 
Than Fair Value.

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EFFECTIVE DATE: July 24. 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, N.W., Washington, D.C. 20230; 
telephone: (202) 482-3208, or (202) 482-0159, respectively.

SUPPLEMENTARY INFORMATION:

Scope Of The Investigation

    For purposes of this investigation, the product covered is frozen 
fish fillets, including regular, shank, and strip fillets and portions 
thereof, whether or not breaded or marinated, of the species Pangasius 
Bocourti, Pangasius Hypophthalmus (also known as Pangasius Pangasius), 
and Pangasius Micronemus. Frozen fish fillets are lengthwise cuts of 
whole fish. The fillet products covered by the scope include boneless 
fillets with the belly flap intact (``regular'' fillets), boneless 
fillets with the belly flap removed (``shank'' fillets), boneless shank 
fillets cut into strips (``fillet strips/finger''), which include 
fillets cut into strips, chunks, blocks, skewers, or any other shape. 
Specifically excluded from the scope are frozen whole fish (whether or 
not dressed), frozen steaks, and frozen belly-flap nuggets. Frozen 
whole dressed fish are deheaded, skinned, and eviscerated. Steaks are 
bone-in, cross-section cuts of dressed fish. Nuggets are the belly-
flaps.
    The subject merchandise will be hereinafter referred to as frozen 
``basa'' and ``tra'' fillets, which are the Vietnamese common names for 
these species of fish. These products are classifiable under tariff 
article codes 0304.20.60.30 (Frozen Catfish Fillets), 0304.20.60.96 
(Frozen Fish Fillets, NESOI), 0304.20.60.43 (Frozen Freshwater Fish 
Fillets) and 0304.20.60.57 (Frozen Sole Fillets) of the 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.

Background

    On June 23, 2003, An Giang Fisheries Import and Export Joint Stock 
Company (``Agifish''), Can Tho Agricultural and Animal Products Import 
Export Company (``CATACO''), Nam Viet Company Limited (``Nam Viet''), 
and Vinh Hoan Company Limited (``Vinh Hoan''), hereinafter collectively 
referred to as ``Mandatory Respondents,'' timely filed allegations that 
the Department made ministerial errors in the final determination.
    Similarly, on June 23, 2003, 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 ``Petitioners,'' timely 
filed allegations that the Department made ministerial errors in the 
final determination.

Amendment Of Final Determination

    On June 16, 2003, the Department of Commerce (``the Department'') 
determined that certain frozen fish fillets from the Socialist Republic 
of Vietnam (``Vietnam'') are being, or are likely to be, sold in the 
United States at less than fair value (``LTFV''), as provided in 
section 735(a) of the Tariff Act. See Notice of Final Determination of 
Sales at Less Than Fair Value and Affirmative Critical Circumstances: 
Certain Frozen Fish Fillets from the Socialist Republic of Vietnam 
(``Final Determination'') 68 FR 37116 (June 23, 2003).
    The Department is amending the Final Determination in the 
antidumping investigation of certain frozen fish fillets from the 
Socialist Republic of Vietnam.

Ministerial Error

    A ministerial error is defined as an error in addition, 
subtraction, or other arithmetic function, clerical error resulting 
from inaccurate copying, duplication, or the like, and any other 
similar type of unintentional error which the Secretary considers 
ministerial. See 19 C.F.R. 351.224(f).

Ministerial Error Allegations From The Mandatory Respondents

Comment 1: By-Product Offset

    The Mandatory Respondents argue that the Department has repeated 
the ministerial error regarding the by-product credit offset that was 
contained in the 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 (``Preliminary 
Determination'') 68 FR 4986 (January 31, 2003). According to the 
Mandatory Respondents, in the Final Determination, as in the 
Preliminary Determination, the Department deducted the by-product 
credit from normal value after applying surrogate financial ratios, 
rather than deducting it from the cost of manufacturing before applying 
the surrogate financial ratios. The Mandatory Respondents assert that 
it is the Department's normal practice to deduct the by-product credit 
from the cost of manufacturing because the costs associated with the 
production of by-products are reflected in the costs for producing the 
primary finished products.
    The Mandatory Respondents note that the Department previously 
corrected this error, explaining that the correction represented the 
Department's ``normal practice,'' and that the method used in the 
Preliminary Determination ``represents an error.'' See Notice of 
Amended Preliminary Determination of Sales at Less Than Fair Value: 
Certain Frozen Fish Fillets from the Socialist Republic of Vietnam 
(``Amended Preliminary Determination''), 68 FR 10440 (March 5, 2003). 
Finally, the Mandatory Respondents argue that the Memorandum to Joseph 
A. Spetrini, Acting Assistant Secretary for Import Administration, from 
Barbara E. Tillman, Acting Deputy Assistant Sectretary for Import 
Administration, Group III, Issues and Decision Memorandum for the 
Antidumping Duty Investigation of Certain Frozen Fish Fillets from the 
Socialist Republic of Vietnam, (June 16, 2003), (``Issues and Decision 
Memorandum'') accompanying the Final Determination does not clearly 
explain why the Department reversed the correction in the Amended 
Preliminary Determination for purposes of the Final Determination. As a 
result, the Mandatory Respondents argue that the Department should 
again correct itself by deducting the by-product credit from the cost 
of manufacturing, as in the Amended Preliminary Determination.

[[Page 43714]]

    The Petitioners rebut the Mandatory Respondents' allegation by 
citing the Department's description of its calculation methodology 
contained in the Issues and Decision Memorandum at 6. Furthermore, the 
Petitioners note that the Department defines ministerial errors as ``an 
error in addition, subtraction, or other arithmetic function, clerical 
error resulting from inaccurate copying, duplication, or the like, and 
any other similar type of unintentional error which the Secretary 
considers ministerial.'' Consequently, the Petitioners do not agree 
with the Mandatory Respondents' ministerial error allegation because 
the Department explained the rationale for this intended change and 
because the allegation does not meet the definition of a ministerial 
error.

Department's Position:

    We disagree with the Mandatory Respondents that the Department 
incorrectly deducted the by-product credit from normal value. As we 
noted in the Amended Preliminary Determination, the Department would 
``carefully revisit all aspects of this issue in the final 
determination.'' As explained in the Issues and Decision Memorandum, 
the Department reviewed the surrogate company financial statements, and 
noted that Apex and Bionic do not reduce their cost of manufacturing 
amount for the by-product revenues. Instead, they recognize the by-
product revenues as ``miscellaneous income'' which is shown as a 
separate line item in their financial statements. We used the cost of 
manufacturing amounts from the surrogate company's financial statements 
to calculate the selling, general and administrative (``SG&A'') and 
profit rates. Accordingly, the Department has determined that, because 
the surrogate financial ratios were calculated excluding any by-product 
revenues, to deduct the by-product credit from the cost of 
manufacturing would misstate the results.
    Therefore, the Department has not made the requested change.

Comment 2: Agifish's Electricity Consumption

    Agifish argues that the Department incorrectly calculated Agifish's 
factor input for electricity in the production of the subject 
merchandise. Agifish asserts that the Department inadvertently 
transposed two numbers when it recorded electricity usage for the month 
of January 2002.

Department's Position:

    We agree with Agifish that the Department incorrectly calculated 
Agifish's factor input for electricity in the production of the subject 
merchandise. Accordingly, the error regarding the correction of the 
electricity alleged by Agifish is a ministerial error within the 
meaning of 19 C.F.R. 351.224(f).
    Therefore, we are amending our Final Determination with regard to 
Agifish's electricity consumption. For a more detailed analysis, please 
see the Memorandum to the File from John D. A. LaRose, International 
Trade Analyst, to the File through James C. Doyle, Program Manager 
regarding the Amended Final Determination for Agifish (``Agifish 
Amended Final Memo''), dated July 18 at 2.

Comment 3: Water Consumption

    The Mandatory Respondents argue that the Department incorrectly 
estimated their water consumption ratios in the Final Determination. 
According to the Mandatory Respondents, the Department included the 
labor and electricity used to pump water into their processing 
facilities in the consumption figures for labor and electricity, 
respectively. The Mandatory Respondents argue that for this reason and 
because the companies do not pay for the water that they pump, the 
Department double-counted their water consumption at the processing 
facility in the Final Determination. The Mandatory Respondents argue 
that the Department should not value the water pumped into their 
processing facilities.
    The Petitioners rebut the allegation regarding Agifish and CATACO 
by noting that the Department stated in the Issues and Decision 
Memorandum at 23 and 25 that Agifish and CATACO failed to provide data 
on water consumption at their by-products facilities. Accordingly, the 
Department applied the highest water consumption figures from the 
processing stage as adverse facts available. Petitioners assert that 
this was a methodological decision made by the Department.
    The Petitioners also rebut all four Mandatory Respondents' argument 
that water costs are irrelevant because the companies did not pay for 
the water. Petitioners assert that the Department has specifically 
determined in past non-market economy cases that it is appropriate to 
value water in these specific instances, and that the actual price paid 
by the respondent for water is irrelevant.

Department's Position:

    The Department disagrees with the Mandatory Respondents. The issue 
of ``double-counting'' water consumption by the inclusion in the margin 
calculations of both the water input and the factors (labor and 
electricity) used to pump the water is not a ministerial error within 
the meaning of 19 C.F.R. 351.224(f) because the Department intended to 
value the Mandatory Respondents' water consumption factors in the 
manner in which we did. At the time of the Final Determination, the 
Department was unaware of the possibility that the factors to pump 
water may have been included in the labor and electricity consumption 
factors. We note that no interested parties raised the issue regarding 
the ``double-counting'' of water during the investigation. Furthermore, 
even if any parties had raised the issue, no information or evidence 
was provided on the record which would have enabled the Department to 
address the issue otherwise. Finally, we note that the Mandatory 
Respondents did not cite any record evidence of ``double-counting'' in 
their ministerial error allegation.
    Because the Department intended to value the Mandatory Respondents' 
water consumption factors in the manner in which we did at the time of 
the Final Determination, we do not consider this allegation as a 
ministerial error within the meaning of 19 C.F.R. 351.224(f). 
Consequently, the Department has not made the requested change.

Ministerial Error Allegations From The Petitioners

Comment 4: Agifish's, CATACO's and Nam Viet's Cold Storage and 
Warehousing Expenses

    The Petitioners argue that the Department erred in applying the 
surrogate value for cold storage warehousing in the net U.S. price 
calculation for the Agifish, CATACO, and Nam Viet. The Petitioners 
assert that the Department only included a single day of cold storage 
costs, and failed to multiply the rate for a single day by the number 
of days of storage reported by each company. The Petitioners argue that 
the Department should remedy this error by multiplying the cold storage 
surrogate value of $0.0025 kg/day by the number of days the subject 
merchandise is kept in storage as reported by each company.
    None of the Mandatory Respondents replied to this allegation.

[[Page 43715]]

Department's Position:

    We agree with the Petitioners that the Department erred in 
calculating Agifish's, CATACO's, and Nam Viet's cold storage 
warehousing costs. In their December 30, 2002 supplemental response, 
Agifish, CATACO and Vinh Hoan reported their respective number of days 
that the subject merchandise is kept in cold storage at its warehouses. 
However, we inadvertently did not multiply the cold storage cost by the 
number of days each company stores the subject merchandise in cold 
storage in the Final Determination. Accordingly, the error regarding 
the cold storage costs is an error within the meaning of 19 C.F.R. 
351.224(f) with regard to Agifish, CATACO and Nam Viet. Therefore, we 
have multiplied each companies' number of storage days by the single-
day cold storage rate of $0.0025 to calculate the company-specific cold 
storage warehousing costs. For a more detailed explanation, please see 
the company specific analysis memoranda.

Continuation of Suspension of Liquidation

    In accordance with section 735(c)(1)(B) of the Act, we are 
directing the U.S. Bureau of Customs and Border Protection 
(``Customs'') to continue to suspend liquidation of all entries of 
subject merchandise from Vietnam, that are entered, or withdrawn from 
warehouse, for consumption on or after the date of publication of the 
Preliminary Determination for Agifish, CATACO, Vinh Hoan, Mekonimex, 
and Viet Hai. With respect to Nam Viet, QVD, Da Nang, Afiex, Cafatex, 
Vinh Long and all other Vietnam exporters, the Department will continue 
to direct Customs to suspend liquidation of all entries of certain 
frozen fish fillets from Vietnam that are entered, or withdrawn from 
warehouse, on or after 90 days before the date of publication of the 
Preliminary Determination. Customs shall continue to require a cash 
deposit or posting of a bond equal to the estimated amount by which the 
normal value exceeds the U.S. price as shown below. This suspension of 
liquidation instructions will remain in effect until further notice.

Amended Final Determination

    We determine that the following weighted-average dumping margins 
exist for the period October 1, 2001 through March 30, 2002:

                                    Certain Frozen Fish Fillets from Vietnam
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                Producer/Manufacturer/Exporter                        Final Margin         Amended Final Margin
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Agifish.......................................................                    44.76                    47.05
Vinh Hoan.....................................................                    36.84                    36.84
Nam Viet......................................................                    52.90                    53.68
CATACO........................................................                    45.55                    45.81
Afiex.........................................................                    44.66                    45.55
CAFATEX.......................................................                    44.66                    45.55
Da Nang.......................................................                    44.66                    45.55
Mekonimex.....................................................                    44.66                    45.55
QVD...........................................................                    44.66                    45.55
Viet Hai......................................................                    44.66                    45.55
Vinh Long.....................................................                    44.66                    45.55
Vietnam-Wide Rate.............................................                    63.88                    63.88
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International Trade Commission Notification

    In accordance with section 735(d) of the Act, we have notified the 
International Trade Commission (ITC) of our amended final 
determination. If the ITC determines that material injury, or threat of 
material injury does not exist, the proceeding will be terminated and 
all securities posted will be refunded or cancelled. If the ITC 
determines that such injury does exist, the Department will issue an 
antidumping duty order directing Customs officials to assess 
antidumping duties on all imports of subject merchandise entered for 
consumption on or after the effective date of the suspension of 
liquidation.
    This determination is issued and published in accordance with 
sections 735(d), 735(e) and 777(i)(1) of the Act.

    Dated: July 17, 2003.
Jeffrey May,
Acting Assistant Secretary for Grant Aldonas, Under Secretary.
[FR Doc. 03-18860 Filed 7-23-03; 8:45 am]
BILLING CODE 3510-DS-S