[Federal Register: May 28, 2003 (Volume 68, Number 102)]
[Notices]
[Page 31681-31683]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28my03-31]
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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