69 FR 42672, July 16, 2004

DEPARTMENT OF COMMERCE

International Trade Administration

[A-552-802]

Notice of Preliminary Determination of Sales at Less Than Fair Value, 
Negative Preliminary Determination of Critical Circumstances and 
Postponement of Final Determination: Certain Frozen and Canned Warmwater 
Shrimp From the Socialist Republic of Vietnam

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

EFFECTIVE DATE: July 16, 2004.

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

Preliminary Determination

    We preliminarily determine that certain frozen and canned warmwater 
shrimp from the Socialist Republic of Vietnam ("Vietnam") is being, 
or is 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.
    Interested parties are invited to comment on this preliminary 
determination. We will make our final determination not later than 135 
days after the date of publication of this preliminary determination.

Case History

    On December 31, 2003, the Ad Hoc Shrimp Trade Action Committee, an 
ad hoc coalition representative of U.S. producers of frozen and canned 
warmwater shrimp and harvesters of wild-caught warmwater shrimp 
(hereafter known as, the "Petitioners"), filed, in proper form, 
petitions on imports of certain frozen and canned warmwater shrimp from 
Brazil, Ecuador, India, Thailand, the People's Republic of China ("the 
PRC") and Vietnam. On January 12, 2003, the Petitioners filed 
amendments to the petition.
    On January 12, 2003, the Vietnam Association of Seafood Exporters 
and Producers ("VASEP") and the Vietnamese Shrimp Committee ("VSC") 
submitted comments regarding industry support. On January 13, 2004, the 
Department requested that all interested parties submit comments on the 
Petitioners' calculation of industry support.
    On January 13, 2004, the Petitioners filed a supplement to the 
petition.
    On January 15, 2004, the Department received affidavits in support 
of the Petitioners' calculation of industry support. On January 15, 
2004, VSC submitted additional comments regarding industry support. On 
January 16, 2004, the Petitioners submitted rebuttal comments to VSC's 
January 12, 2004, comments regarding industry support. On January 20, 
2004, the Petitioners submitted supplemental information to the 
petition and revised comments to their January 16, 2004, submission.
    On January 20, 2004, the Department initiated antidumping duty 
investigations on certain frozen and canned warmwater shrimp from 
Brazil, Ecuador, India, Thailand, the PRC and Vietnam. See Notice of 
Initiation of Antidumping Duty Investigations: Certain Frozen and 
Canned Warmwater Shrimp from Brazil, Ecuador, India, Thailand, the 
People's Republic of China and the Socialist Republic of Vietnam 
("Initiation Notice") 69 FR 3876 (January 27, 2004). On January 20, 
2004, the Department notified the International Trade Commission 
("ITC") of the antidumping investigation initiation and the intent to 
publish in the Federal Register a notice of such initiation.

Post-Initiation General Case Issues and Letters From Outside Parties

    On February 4, 2004, the Petitioners filed an amendment to their 
December 31, 2003 petition adding two other individuals as petitioners: 
Versaggi Shrimp Corporation and Indian Ridge Shrimp Company.
    On February 10, 2004, the Department issued initiation instructions 
to U.S. Customs and Border Protection ("CBP").
    On March 2, 2004, the 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 reasons of 
imports from Vietnam of certain frozen and canned warmwater shrimp. See 
Certain Frozen or Canned Warmwater Shrimp and Prawns from Brazil, 
China, Ecuador, India, Thailand and Vietnam ("ITC Injury Notice") 69 
FR 9842 (March 2, 2004).
    On March 18, 2004, VSC submitted comments regarding reporting 
requirements.
    On May 24, 2004, the Department published in the Federal Register a 
notice postponing the preliminary determination in this investigation. 
See

[[Page 42673]]

Notice of Postponement of Preliminary Determination of Antidumping Duty 
Investigations: Certain Frozen and Canned Warmwater Shrimp from Brazil 
(A-353-838), Ecuador (A-331-802), India (A-533-840), Thailand (A-549-
822), PRC (A-570-893) and Vietnam (A-503-802 \1\), 69 FR 29509 (May 24, 
2004) ("Postponement Notice").
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    \1\ The Department inadvertently listed case number A-503-882 as 
Vietnam's case number in the Postponement Notice. The correct case 
number for Vietnam is A-552-802.
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Model Match, Product Characteristics, and CONNUM

    On January 28, 2004 the Department requested product characteristic 
comments from interested parties. On February 4, 2004, the Department 
received model match comments from VSC, the Thai Frozen Foods 
Association ("TFFA"), the Coalition of Shrimp Exporters/Producers of 
South China (the "PRC Coalition"), the National Chamber of 
Aquaculture (Ecuador) ("CNA"), the Seafood Exporters' Association of 
India ("SEAI"), the Marine Products Export Development Authority 
("MPDEA"), and the Petitioners. On February 9, 2004, TFFA filed 
comments on the Petitioners' model match submission. On February 9, and 
February 10, 2004, VSC and CNA, respectively, submitted rebuttal 
comments on the Petitioners' February 4, 2004 model match comments.
    On February 11, 2004, the Petitioners filed rebuttal comments in 
response to VSC's February 4, 2004, model match comments and responses 
to VSC's, TFFA's, and CNA's February 9 and February 10, 2004 rebuttal 
comments. On February 17, 2004, the Department requested comments from 
all interested parties on draft product characteristic reporting.
    On February 18, 2004, the Department received comments on product 
characteristics from SEAI and granted an extension for draft product 
characteristic comments from February 19 to February 23, 2004. On 
February 19, 2004, TFFA and CNA submitted comments on model match 
criteria. On February 23, 2004, VSC, Brazilian shrimp exporters, and 
the Petitioners submitted model match comments.

Quantity and Value

    On January 29, 2004, the Department sent a letter to all interested 
parties in this investigation requesting responses to the quantity and 
value questionnaire. On January 29, 2004, the Department sent a letter 
to the Embassy of Vietnam seeking their support in the transmittal of 
the quantity and value questionnaire. On February 5, 2004, the 
Department received the quantity and value data from Vietnamese 
producers of shrimp \2\ in accordance with our January 29, 2004, 
instructions. On February 20, 2004, VSC filed official company 
certifications for its February 5, 2004, submission.
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    \2\ Minh Phu Seafood Corporation ("Minh Phu"); Kim Anh Co., 
Ltd. ("Kim Anh"); Minh Hai Joint-Stock Seafoods Processing Company 
("Seaprodex Minh Hai"); Camau Frozen Seafood Processing Import 
Export Corporation ("Camimex"); Can Tho Animal Fisheries Product 
Processing Export Enterprise ("Cafatex"); Cai Doi Vam Seafood 
Import Export Company ("Cadovimex"); Sao Ta Foods Joint Stock 
Company ("Fimex VN"); Viet Hai Seafood Company ("Vietnam 
FishOne"); Kiengiang Seafood Import Export Company ("Kisimex"); 
Soc Trang Aquatic Products and General Import Export Company 
("Stapimex"); Coastal Fisheries Development Corporation 
("Cofidec"); Phuong Nam Co., Ltd.; Cuu Long Seaproducts Company 
("Cuulong Seapro"); Minh Hai Export Frozen Seafood Processing 
Joint-Stock Company ("Jostoco"); Can Tho Agriculture and Animal 
Products Import Export Company ("Cataco"); Nha Trang Fisheries 
Co.; Nhatrang Seaproduct Company ("Nhatrang Seafoods"); Minh Hai 
Seaproducts Import and Export Corporation ("Seaprimex"); Thuan 
Phuoc Seafoods and Trading Corporation; Nhatrang Fisheries Joint 
Stock Company ("Nhatrang Fishco"); Danang Seaproducts Import 
Export Company ("Seaprodex Danang"); C.P. Vietnam Livestock; UTXI 
Aquatic Products Processing Company; Viet Nhan Company; Investment 
Commerce Fisheries Corporation ("Incomfish"); Vinhloi Import 
Export Company ("Vimexico"); Bac Lieu Fisheries; Matourimex Ho Chi 
Minh City Branch (Tourism Material and Equipment Company); Viet 
Foods Co., Ltd.; Truc An Company; Camranh Seafoods Processing 
Enterprise PTE ("Camranh Seafoods"); Hai Thuan Company; Phu Cuong 
Company; Ngoc Sinh Company; Aquatic Product Trading Company 
("APT"); Aquatic Songhuong Company; Hanoi Seaproducts Import 
Export Corp. ("Seaprodex Hanoi"); An Giang Fisheries Import-Export 
Joint Stock Company ("Agifish").
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Scope

    On February 17, 2004, the Department received scope comments on 
behalf of Ocean Duke Corporation ("Ocean Duke") requesting that the 
Department confirm that "dusted shrimp," "battered shrimp," and 
"seafood mix" not be covered by the scope of the investigation. On 
February 17, 2004, the Louisiana Shrimp Association ("LSA") filed 
scope comments concerning fresh (never frozen) shrimp.
    On February 26, 2004, Rubicon Resources ("Rubicon") submitted 
scope comments in support of Ocean Duke's February 17, 2004, scope 
comments. On March 12, 2004, the Petitioners filed rebuttal comments to 
LSA's February 17, 2004, comments requesting an amendment of the scope 
of the investigations to include fresh shrimp. On March 16, 2004, the 
Petitioners submitted responses to the numerous scope comments 
concerning dusted and battered shrimp, and seafood mix.
    On April 16, 2004, Ocean Duke submitted additional comments 
regarding dusted and battered shrimp, arguing that they fall within the 
meaning of the term "breaded shrimp." On May 6, 2004, SEAI filed 
scope comments regarding warmwater salad shrimp and the species 
Macrobachium rosenbergii. On May 19, 2004, the Petitioners submitted 
scope comments regarding dusted shrimp, battered shrimp, organic raised 
shrimp, warmwater salad shrimp, and the species Macrobachium 
rosenbergii.
    On June 4, 2004, Exportadora de Alimentons S.A. ("Expalsa") 
submitted a response to the Petitioners' May 19, 2004, scope comments 
on organic shrimp. On June 4, 2004, Ocean Duke submitted a response to 
the Petitioners' May 19, 2004, scope comments regarding dusted and 
battered shrimp. On June 7, 2004, Eastern Fish Company ("Eastern 
Fish") and Long John Silver's, Inc. ("LJS") filed scope comments 
regarding dusted shrimp and battered shrimp. On June 9, 2004, the 
Department received certification for American Breaded Shrimp 
Processors Association's ("ABSPA") June 7, 2004, submission.

Mandatory Respondents

    On February 23, 2004, the Department issued its respondent 
selection memorandum, selecting Seaprodex Minh Hai; Camimex; Kim Ahn; 
and Mihn Phu as mandatory respondents (hereafter collectively referred 
to as the "Respondents"). See Memorandum to the File from James C. 
Doyle, Program Manager, to Edward C. Yang, Director of Office IX, 
Antidumping Duty Investigation of Certain Frozen and Canned Warmwater 
Shrimp from the Socialist Republic of Vietnam: Selection of Respondents 
("Respondent Selection Memo").
    On February 25, 2004, the Department issued the Department's non-
market economy ("NME") antidumping duty Section A questionnaire to 
the Respondents, with a March 17, 2004, deadline to file responses.
    On March 1, 2004, the Department issued Sections C, D and E of the 
Department's NME questionnaire to the Respondents. On March 9, 2004, 
the Department informed the Respondents of revised reporting 
requirements with regard to Sections C and D of the antidumping duty 
questionnaire. On March 11, 2004 the Department sent the Government of 
Vietnam copies of the Department's NME questionnaires.
    On March 12, 2004, VSC submitted applicable Vietnamese laws to the 
Department in response to the Department's Section A questionnaire. On 
March 19, 2004, the Respondents requested a three-week extension of the

[[Page 42674]]

deadline for responses to Sections C and D of the Department's 
antidumping questionnaire. The deadline was granted on March 19 and 
extended until April 21, 2004.
    On March 25, 2004, the Department sent a letter to Camimex and 
Jostoco regarding collapsing the two companies. On March 25, 2004, the 
Department requested additional information from Jostoco regarding 
their response to the Section A questionnaire.
    On March 25, 2004, the Petitioners submitted comments on the 
Section A responses of Kim Anh and Minh Phu. On March 26, 2004, the 
Petitioners submitted comments on the Section A responses of Seaprodex 
Minh Hai and Camimex. On March 29, 2004, the Department sent 
supplemental questionnaires to Minh Phu, Seaprodex Minh Hai, Camimex, 
and Kim Anh. On April 1, 2004, Seaprodex Minh Hai filed a letter 
clarifying its relationship with Seaprodex Vietnam.
    On April 5, 2004, the Respondents requested a three-week extension 
to respond to the Department's supplemental Section A questionnaire. On 
April 7, 2004, the Department granted a ten-day extension from April 12 
to April 22, 2004.
    On April 13, 2004, the Department sent a supplemental questionnaire 
to Jostoco. On April 16, 2004, Jostoco requested a two-week extension 
to file responses to the Department's supplemental Section A 
questionnaire. On April 20, 2004, the Department granted Jostoco's 
Section A supplemental questionnaire extension request until April 27, 
2004. On April 20, 2004, Jostoco requested an extension of the deadline 
for Section C and D questionnaire responses. On April 21, 2004, the 
Department granted Jostoco's request, extending the deadline to April 
28, 2004.
    On April 21, 2004, Camimex, Kim Anh, Minh Phu, and Minh Qui 
submitted responses to the Section C and D questionnaires. On April 22, 
2004, the Department received Section A responses from Kim Anh, 
Seaprodex Minh Hai, Minh Phu, and Minh Qui. On April 22, 2004, 
Seaprodex Minh Hai submitted Section C and D questionnaire responses. 
On April 23, 2004, Camimex and Seaprodex Minh Hai filed their Section A 
responses. On April 23, 2004, Seaprodex Minh Hai requested and 
extension of time to respond to the Department's supplemental Section A 
questionnaire. On April 26, 2004, the Department extended Seaprodex 
Minh Hai's deadline to respond to the Section A supplemental 
questionnaire to May 4, 2004. On April 28, 2004, Seaprodex Minh Hai 
submitted Section C and D questionnaire responses.
    On April 30, 2004, the Petitioners filed comments on the 
Respondents' supplemental Section A, C and D questionnaires. The 
Petitioners submitted proposed additional questions for Minh Phu, Minh 
Qui, Minh Phat, Camimex, Seaprodex Minh Hai, and Kim Anh.
    On May 3, 2004, Kim Anh's filed its supplemental Section D 
questionnaire response. On May 4, 2004, Seaprodex Minh Hai submitted 
its second supplemental Section A questionnaire response. On May 14, 
2004, the Department sent the Respondents supplemental questionnaires 
addressing deficiencies in their Section A questionnaire responses.
    On May 21, 2004, Camimex, Minh Phu, Seaprodex Minh Hai, and Kim Anh 
requested an extension of the deadline for the submission of 
supplemental Section A, C and D questionnaire responses. On May 25, 
2004, the Department granted an extension for supplemental 
questionnaire responses. On May 26, 2004, the Department granted a one-
week extension to June 4, 2004, to Camimex, Seaprodex Minh Hai, and 
Minh Phu to respond to their supplemental Section A, C and D 
questionnaires. The Department also granted a one-week extension to Kim 
Anh to June 8, 2004.
    On May 28, 2004, the Respondents requested an extension of the 
deadline for supplemental Section A, C and D questionnaire responses. 
On May 28, 2004 the Department granted a one-week extension to June 9, 
2004, to the Respondents to respond to the Department's Section A 
supplemental questionnaire. On June 3, 2004, the Department granted Kim 
Ahn an extension of the deadline to respond to the Department's May 18, 
2004 supplemental questionnaire.
    On June 8, 2004, the Respondents requested an extension of the 
deadline for supplemental Section A, C and D questionnaire responses.

Surrogate Country and Factors

    On March 5, 2004, the Department requested a list of surrogate 
countries from the Office of Policy. On March 12, 2004, the Department 
provided all interested parties with the opportunity to submit 
surrogate value information for valuing factors of production. On March 
17, 2004, VSC requested a three-week extension to file surrogate 
country comments. The deadline was extended to April 2, 2004.
    On March 29, 2004, VSC requested an additional extension of one 
week to comment on surrogate country selection. On March 31, 2004, a 
number of interested parties requested a three-week extension of the 
deadline to file comments on the appropriate surrogate country. On 
March 31, 2004, the Department granted a one-week extension for all 
surrogate country comments and set a new deadline of April 9, 2004. On 
April 9, 2004, VSC submitted surrogate value data. On April 30, 2004, 
VSC requested an extension of the deadline to file surrogate value 
information. On May 4, 2004, the Petitioners requested an extension of 
time to submit surrogate value data. On May 5, 2004, the Department 
granted a two-week extension to May 21, 2004, for all parties to submit 
surrogate value data.
    On May 21, 2004, the Petitioners submitted surrogate value data for 
the factors of production. On May 21, 2004, VSC submitted a letter 
regarding publicly available information to value production factors. 
On June 4, 2004, the Respondents requested an extension of the deadline 
for the supplemental questionnaire response on surrogate values. On 
June 4, 2004, the Petitioners commented on VSC's surrogate value data. 
On June 7, 2004, the Department granted the Respondents a one-week 
extension to June 9, 2004, to answer the June 2, 2004, surrogate values 
questionnaire. On June 9, 2004, VSC submitted their surrogate value 
supplemental questionnaire response.
    On June 16, 2004, the VASEP submitted rebuttal comments to 
Petitioners' surrogate values submission of June 4, 2004.
    On June 22, 2004, VASEP submitted additional comments regarding the 
valuation of energy. On June 23, 2003, the Petitioners submitted 
additional surrogate value comments. On June 25, 2004, VASEP submitted 
comments regarding surrogate values. On June 29, 2004, the Department 
placed additional surrogate value data on the record and the 
Petitioners submitted additional comments regarding VASEP's June 22, 
2004 comments.

Section A Respondents

    On March 15, 2004, VSC requested an extension of the deadline for 
the Section A voluntary responses. A one-week extension for all 
Respondents was granted on March 16, 2004. See Memo to the File, from 
Lisa Shishido, dated March 15, 2004.
    On March 17, 2004, the Department received Section A responses from 
the mandatory respondents along with: CP Vietnam Livestock; Bac Lieu 
Fisheries; UTXI Aquatic products Processing Company; Stapimex; Fimex 
VN; Nha Trang Fisheries Co.; Truc An Company;

[[Page 42675]]

Cadovimex; Vietnam FishOne; Cofidec; Jostoco; and Cafatex. On March 18, 
2004, the Department received Section A responses from: Nha Trang 
Seafoods; Aquatic Songhuong Company; Seaprodex Hanoi; Nha Trang Fishco; 
Cuulong Seapro; Viet Nhan Company; Viet Foods Co. Ltd.; Incomfish; 
Seaprimex; and Seaprodex Danang. On March 19, 2004, the Department 
received Section A responses from: Haithuan Company; Pataya VN; Phu 
Cong Company; Vimexco; Ngoc Sinh Company; Camrahn Seafoods; APT; 
Kisimex; Cataco; Thuan Phuoc Seafoods and Trading Corporation; Phuong 
Nam Company Ltd. On March 24, 2004, the Department received a Section A 
response from Amanda Foods Vietnam Limited ("Amanda").
    On May 24, 2004, the Department sent supplemental Section A 
questionnaires to the following companies: Ngoc Sinh; Cofidec; Qnaire; 
Stapimex; Hai Thuan; Songhuong; Nha Trang Fishco; Nha Trang Seafoods; 
C.P. Vietnam; UTXI; Viet Foods; Kisimex; Truc An; Nha Trang; APT; 
Pataya Food; Cataco; Seaprodex Danang; Phuong Nam; Sao Ta; Cuu Long; 
Minh Hai; Cafatex; Camranh Seafoods; Thuan Phuoc; Cadovimex; and Viet 
Hai. On May 26, 2004, the Department sent supplemental Section A 
questionnaires to: Viet Nhan, Incomfish, Vimexco and Bac Lieu. On May 
28, 2004, the Department received a letter from Bac Lieu, Incomfish, 
Viet Nhan and Vimexco requesting an extension of the deadline for their 
supplemental Section A questionnaire responses. The Department extended 
the deadline by one week to June 8, 2004.
    On May 28, 2004, Amanda requested a two-week extension to respond 
to the Department's supplemental Section A questionnaires. On May 28, 
2004, the Department sent Phu Cuong Company and Minh Hai Jostoco 
supplemental Section A questionnaires. On June 1, 2004, the Department 
granted Amanda a one week extension to June 15, 2004, to respond to the 
supplemental Section A questionnaire. On June 4, 2004, Amanda requested 
an additional three-day extension to respond to the supplemental 
Section A questionnaire. On June 7, 2004, the Department granted a one-
day extension to Amanda to respond to their Section A questionnaire to 
June 9, 2004. On June 7, 2004, the Department received a request for an 
extension of the deadline for supplemental questionnaires issued to: 
Cam Ranh; Cofidec; C.P. Livestock; Kisimex; Seaprimexco; Seaprodex 
Danang; Seaprodex Hanoi; Stapimex; ASC; APT; Ngoc Sinh; and Truc An 
Company. On June 10, 2004, the Department granted the Respondents an 
extension of the deadline to respond to the Department's May 14, 2004, 
supplemental questionnaires.

Critical Circumstances Allegation

    On May 19, 2004, the Petitioners submitted a request for an 
expedited critical circumstances finding to the Department. On May 27, 
2004, VSC filed a letter opposing the Petitioners request that the 
Department determine that "critical circumstances" exist with respect 
to the importation of subject merchandise from Vietnam. On May 28, 
2004, the Department sent a letter to the Respondents requesting 
monthly shipment data pertaining to the Petitioners' critical 
circumstances allegation.
    On June 2, 2004, the Department sent a letter to Jostoco requesting 
monthly shipment data pertaining to the Petitioners' critical 
circumstances allegation. On June 2, 2004, the Department requested 
additional information from the Respondents in the form of a 
supplemental questionnaire to be due June 7, 2004.
    On June 14, 2004, the Department received a request for a one-day 
extension to respond to the Department's May 28, 2004, request for 
critical circumstances data. The request was granted and the deadline 
was extended to June 15, 2004. On June 24, 2004, the Petitioners 
submitted supplemental critical circumstances data on the record.

Headless, Shell-on ("HLSO") Issue

    On May 21, 2004, the Department sent all interested parties a 
letter soliciting comments on the appropriate methodology to employ in 
making product comparisons, where applicable, and performing margin 
calculations for the purposes of the preliminary determination in the 
investigation. On June 7, 2004, the Department received comments on 
product comparison methodology from the Petitioners, VSC, CNA, Empresa 
De Armazenagem Frigorifica Ltda. ("EMPAF"), and Rubicon.
    On June 8, 2004, the Department received comments from Thai I-Mei 
Frozen Foods Co., Ltd. and its affiliated reseller, Ocean Duke, on 
calculation methodology for the preliminary determination. Thai I-Mei 
Frozen Foods Co. addressed the issue of HLSO calculations in its 
letter.
    On June 10, 2004, Union Frozen Products Co., Ltd. ("UFP") replied 
to the Petitioners' June 7, 2004, submission on the issue of 
calculations being performed using data provided on an "as sold" 
basis or on an HLSO basis. On June 10, 2004, Rubicon submitted comments 
on the Petitioners' June 4, 2004, comments on the use of HLSO count 
sizes for comparisons and margin calculations.
    On June 10, 2004, the Department received a request that SEAI's 
June 7, 2004, comments concerning the Department's appropriate 
methodology to employ in making product comparisons in the Indian 
investigation (A-533-84) be filed on the record of this investigation. 
On June 15, 2004, the Department received the Petitioners' rebuttal 
comments regarding the use of HLSO count sizes. On June 25, 2004, SEAI 
submitted additional comments on Petitioners' product comparison 
comments of June 15, 2004.

NME Status

    On June 10, 2004, the Ministry of Trade of Vietnam submitted 
comments on the NME status of Vietnam on behalf of the Government of 
Vietnam.

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) 
requires 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 June 17, 2004, the 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' request 
also included a request to extend the provisional measures to not more 
than six months after the publication of the preliminary determination. 
Accordingly, because 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

[[Page 42676]]

extending the provisional measures accordingly.

Period of Investigation

    The period of investigation ("POI") is April 1, 2003, through 
September 30, 2003. This period corresponds to the two most recent 
fiscal quarters prior to the month of the filing of the petition 
(December 31, 2003). See 19 CFR 351.204(b)(1).

Scope of Investigation

    The scope of this investigations includes certain warmwater shrimp 
and prawns, whether frozen or canned, wild-caught (ocean harvested) or 
farm-raised (produced by aquaculture), head-on or head-off, shell-on or 
peeled, tail-on or tail-off,\3\ deveined or not deveined, cooked or 
raw, or otherwise processed in frozen or canned form.
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    \3\ "Tails" in this context means the tail fan, which includes 
the telson and the uropods.
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    The frozen or canned warmwater shrimp and prawn products included 
in the scope of the investigations, regardless of definitions in the 
Harmonized Tariff Schedule of the United States ("HTSUS"), are 
products which are processed from warmwater shrimp and prawns through 
either freezing or canning and which are sold in any count size.
    The products described above may be processed from any species of 
warmwater shrimp and prawns. Warmwater shrimp and prawns are generally 
classified in, but are not limited to, the Penaeidae family. Some 
examples of the farmed and wild-caught warmwater species include, but 
are not limited to, whiteleg shrimp (Penaeus vannemei), banana prawn 
(Penaeus merguiensis), fleshy prawn (Penaeus chinensis), giant river 
prawn (Macrobrachium rosenbergii), giant tiger prawn (Penaeus monodon), 
redspotted shrimp (Penaeus brasiliensis), southern brown shrimp 
(Penaeus subtilis), southern pink shrimp (Penaeus notialis), southern 
rough shrimp (Trachypenaeus curvirostris), southern white shrimp 
(Penaeus schmitti), blue shrimp (Penaeus stylirostris), western white 
shrimp (Penaeus occidentalis), and Indian white prawn (Penaeus 
indicus).
    Frozen shrimp and prawns that are packed with marinade, spices or 
sauce are included in the scope of the investigations. In addition, 
food preparations, which are not "prepared meals," that contain more 
than 20 percent by weight of shrimp or prawn are also included in the 
scope of the investigations.
    Excluded from the scope are (1) breaded shrimp \4\ and prawns 
(1605.20.10.20); (2) shrimp and prawns generally classified in the 
Pandalidae family and commonly referred to as coldwater shrimp, in any 
state of processing; (3) fresh shrimp and prawns whether shell-on or 
peeled (0306.23.00.20 and 0306.23.00.40); (4) shrimp and prawns in 
prepared meals (1605.20.05.10); and (5) dried shrimp and prawns.
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    \4\ Pursuant to our scope determination on battered shrimp, we 
find that breaded shrimp includes battered shrimp as discussed 
below. See Memorandum from Edward C. Yang, Vietnam/NME Unit 
Coordinator, Import Administration to Jeffrey A. May, Deputy 
Assistant Secretary for Import Administration Antidumping 
Investigation on Certain Frozen and Canned Warmwater Shrimp from 
Brazil, Ecuador, India, Thailand, the Socialist Republic of Vietnam 
and the Socialist Republic of Vietnam: Scope Clarification on Dusted 
Shrimp and Battered Shrimp ("Dusted/Battered Scope Memo"), dated 
July 2, 2004.
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    The products covered by this scope are currently classifiable under 
the following HTSUS subheadings; 0306.13.00.03, 0306.13.00.06, 
0306.13.00.09, 0306.13.00.12, 0306.13.00.15, 0306.13.00.18, 
0306.13.00.21, 0306.13.00.24, 0306.13.00.27, 0306.13.00.40, 
1605.20.10.10, 1605.20.10.30, and 1605.20.10.40. These HTSUS 
subheadings are provided for convenience and for CBP purposes only and 
are not dispositive, but rather the written descriptions of the scope 
of these investigations is dispositive.
    In accordance with the preamble to our regulations (see Antidumping 
Duties; Countervailing Duties, 62 FR 27296, 27323 (May 19, 1997), we 
set aside a period of time for parties to raise issues regarding 
product coverage and encouraged all parties to submit comments within 
20 calendar days of publication of the Initiation Notice. See 
Initiation Notice 69 FR at 3877.
    Throughout the 20 days and beyond, the Department received many 
comments and submissions regarding a multitude of scope issues, 
including: (1) fresh (never frozen) shrimp, (2) Ocean Duke's seafood 
mix, (3) salad shrimp sold in counts of 250 pieces or higher, (4) 
Macrobrachium rosenbergii, organic shrimp, (5) peeled shrimp used in 
breading, (6) dusted shrimp and (7) battered shrimp. On May 21, 2004, 
the Department determined that the scope of these investigations 
remains unchanged, as certain frozen and canned warmwater shrimp, 
without the addition of fresh (never frozen) shrimp. See Memorandum 
from Jeffrey A. May, Deputy Assistant Secretary for Import 
Administration, AD/CVD Enforcement, Group III and Joseph A. Spetrini, 
Deputy Assistant Secretary for Import Administration, AD/CVD 
Enforcement, Group I to James J. Jochum, Assistant Secretary for Import 
Administration Regarding Antidumping Investigations on Certain Frozen 
and Canned Warmwater Shrimp from Brazil, Ecuador, India, the Socialist 
Republic of Vietnam, Thailand, and the Socialist Republic of Vietnam: 
Scope Determination Regarding Fresh (Never Frozen) Shrimp ("Fresh 
Shrimp Memo"), dated May 21, 2004.
    On July 2, 2004, the Department made scope determinations with 
respect to Ocean Duke's seafood mix, salad shrimp sold in counts of 250 
pieces or higher, Macrobrachium rosenbergii, organic shrimp and peeled 
shrimp used in breading. See Memorandum from Edward C. Yang, Vietnam/
NME Unit Coordinator, Import Administration to Jeffrey A. May, Deputy 
Assistant Secretary for Import Administration Antidumping Investigation 
on Certain Frozen and Canned Warmwater Shrimp from Brazil, Ecuador, 
India, Thailand, the Socialist Republic of Vietnam and the Socialist 
Republic of Vietnam: Scope Clarification on Ocean Duke's Seafood Mix, 
Salad Shrimp Sold in Counts of 250 Pieces or Higher, Macrobrachium 
rosenbergii, Organic Shrimp and Peeled Shrimp Used in Breading ("Scope 
Memo"), dated July 2, 2004. Based on the information presented by 
interested parties, the Department determines that Ocean Duke's seafood 
mix is excluded from the scope of this investigation; however, salad 
shrimp sold in counts of 250 pieces or higher, Macrobrachium 
rosenbergii, organic shrimp and peeled shrimp used in breading are 
included within the scope of this investigation. See Scope Memo at 33.
    Additionally, on July 2, 2004, the Department made a scope 
determination with respect to dusted shrimp and battered shrimp. See 
Dusted/Battered Scope Memo. Based on the information presented by 
interested parties, the Department preliminarily finds that while 
substantial evidence exists to consider battered shrimp to fall within 
the meaning of the breaded shrimp exclusion identified in the scope of 
these proceedings, there is insufficient evidence to consider that 
shrimp which has been dusted falls within the meaning of "breaded" 
shrimp. However, there is sufficient evidence for the Department to be 
prepared to exclude this merchandise from the scope of the order 
provided an appropriate description can be developed. See Dusted/
Battered Scope Memo at 18. To that end, along with the previously 
solicited comments regarding breaded

[[Page 42677]]

and battered shrimp, the Department solicits comments from interested 
parties which enumerate and describe a clear, administrable definition 
of dusted shrimp. The Department considers these comments would be 
helpful in its evaluation of the disposition of the status of dusted 
shrimp. See Dusted/Battered Scope Memo at 23.

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. Section 777A(c)(2) of the Act provides the 
Department discretion, when faced with a large number of exporters/
producers, however, 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 considering the 
complexities in this proceeding and its resources, the Department 
determined that it was not practicable in this investigation to examine 
all known producers/exporters of subject merchandise. See Respondent 
Selection Memo at 2. 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 (Minh Phu, Kim Ahn, Camimex and 
Minh Hai), accounted for a significant percentage of all exports of the 
subject merchandise from the Vietnam during the POI and were selected 
as mandatory respondents. See Respondent Selection Memo at 3.

Affiliations

    Section 771(33)(E) of the Tariff Act of 1930, as amended ("the 
Act") provides that the Department will find parties to be affiliated 
if any person directly or indirectly owns, controls, or holds with 
power to vote, five percent or more of the outstanding voting stock or 
shares of any organization and such organization; section 771(33)(F) 
provides that parties are affiliated if two or more persons directly or 
indirectly control, or are controlled by, or under common control with 
any other person; and section 771(33)(G) of the Act provides that 
parties are affiliated if any person controls any other person. To the 
extent that section 771(33) of the Act does not conflict with the 
Department's application of separate rates or enforcement of the NME 
provision, section 773(c) of the Act, the Department will determine 
that exporters and/or producers are affiliated if the facts of the case 
support such a finding. Therefore, we have examined whether Camimex and 
Jostoco are affiliated within the meaning of section 771(33) of the Act 
below.
    Pursuant to 19 CFR 351.401(f), the Department will collapse 
producers and treat them as a single entity where (1) those producers 
are affiliated, (2) the producers have production facilities for 
producing similar or identical products that would not require 
substantial retooling of either facility in order to restructure 
manufacturing priorities, and (3) there is a significant potential for 
manipulation of price or production. In determining whether a 
significant potential for manipulation exists, the regulations provide 
that the Department may consider various factors, including (1) the 
level of common ownership, (2) the extent to which managerial employees 
or board members of one firm sit on the board of directors of an 
affiliated firm, and (3) whether the operations of the affiliated firms 
are intertwined. (See Gray Portland Cement and Clinker From Mexico: 
Final Results of Antidumping Duty Administrative Review, 63 FR 12764, 
12774 (March 16, 1998) and Final Determination of Sales at Less Than 
Fair Value: Collated Roofing Nails from Taiwan, 62 FR 51427, 51436 
(October 1, 1997)). Furthermore, we note that the factors listed in 19 
CFR 351.401(f)(2) are not exhaustive, and, in the context of an NME 
investigation or administrative review, other factors unique to the 
relationship of business entities within the NME may lead the 
Department to determine that collapsing is either warranted or 
unwarranted, depending on the facts of the case. See Hontex 
Enterprises, Inc. v. United States, 248 F. Supp. 2d 1323, 1342 (CIT 
2003) (noting that the application of collapsing in the NME context may 
differ from the standard factors listed in the regulation).
    In summary, depending upon the facts of each investigation or 
administrative review, if there is evidence of significant ownership 
ties or control between or among producers which produce similar and/or 
identical merchandise but may not all produce their product for sale to 
the United States, the Department may find such evidence sufficient to 
apply the collapsing criteria in an NME context in order to determine 
whether all or some of those affiliated producers should be treated as 
one entity (see Certain Hot-Rolled Carbon Steel Flat Products from the 
People's Republic of China, Preliminary Determination of Sales at Less 
Than Fair Value, 66 FR 22183 (May 3, 2001) ("Baosteel") as upheld by 
the Court of International Trade\5\). Therefore, based on the totality 
of the circumstances, the Department will collapse affiliated producers 
and treat them as a single entity where the criteria of 19 CFR 
351.401(f) are met. Therefore, in this case, we have examined whether 
Camimex and Jostoco should be collapsed within the meaning of 19 CFR 
351.401(f).
---------------------------------------------------------------------------

    \5\ Anshan Iron & Steel Co. v United States, 2003 Ct. Int'l 
Trade, Lexis 109,50, Slip Op. 2003-83 (July 26, 2003).
---------------------------------------------------------------------------

    In this case, Camimex held a significant ownership share (i.e., 
51%) of Jostoco for the first four months of the POI. See Camimex's 
March 17, 2004, submission at Exhibit 5, and page 13. In addition, 
Camimex and Jostoco shared a company official, Mr. Tran Quang Chieu 
("Mr. Chieu") who was the Chairman of the Board of Management for 
Jostoco for the first four months of the POI, and was the Director of 
Camimex for the entire POI. See Camimex's April 23, 2004 submission at 
Exhibit 4, and page 25. Mr. Chieu's responsibilities as the Director of 
Camimex include (1) Building a production and marketing strategy; (2) 
highlighting areas of improvement; (3) overseeing company operations; 
(4) nominating managers; and (5) ensuring the general success of the 
company. See Camimex's March 17, 2004, submission at 11. At Jostoco Mr. 
Chieu's responsibilities as Chairman of the Board of Management 
included (1) representing Camimex's interest in Jostoco (Camimex 
received 51% of Jostoco's dividends due to its 51% ownership in 
Jostoco); and (2) convening Board of Management meetings. See Camimex's 
April 23, 2004, submission at 26. While day-to-day operations of 
Jostoco are the responsibility of the Director, the Board of 
Management, made up of the largest shareholders, appoints the Director. 
See Jostoco's March 17, 2004, submission at Exhibit 5 and page 8.
    The Department's examination of the facts in this case are 
necessarily retrospective and reflective of the entire POI and not 
limited to merely the time before Camimex sold its shares to Jostoco. 
However, the Department finds that the record evidence demonstrates 
that Jostoco was affiliated with Camimex for the first four months of 
the POI in accordance with section

[[Page 42678]]

771(33)(E) of the Act for the reasons stated above. However, once 
Camimex sold its shares of Jostoco and Mr. Chieu ceased to be a Jostoco 
company official, there is no evidence on the record that the two 
companies were affiliated after that point. Therefore, based on the 
facts of record, we preliminarily find that Camimex and Jostoco were 
affiliated for the first four months of the POI under the meaning of 
section 771(33) of the Act.
    Based on data contained in Camimex's and Jostoco's March 17, 2004, 
Section A responses, it is clear that Camimex and Jostoco produced 
frozen warmwater shrimp during the POI. Therefore, we find that the 
first and second collapsing criteria are met here because these 
companies were affiliated as explained above and have production 
facilities for producing similar or identical products that would not 
require substantial retooling in order to restructure manufacturing 
priorities. See factors of production data submitted by Camimex on 
April 21, 2004, and Jostoco on April 28, 2004, and Camimex's April 21, 
2004, submission at Exhibit 5 and Jostoco's April 28, 2004, submission 
at Exhibit 4. Indeed, Camimex and Jostoco are required to produce 
frozen warmwater shrimp using substantially identical procedures and 
techniques (known as Hazard Analysis and Critical Point Control 
("HACCP") techniques) in order to sell shrimp in the United States. 
HACCP plans are required by the U.S. Food and Drug Administration to 
ensure food safety in the United States. The HACCP plan mandates each 
stage of processing and the requirements at each stage of processing. 
As stated by Camimex, "the HACCP plan is the most comprehensive 
document setting forth the production process for each finished 
product." Both Camimex and Jostoco have stated that they follow HACCP 
procedures. See Camimex's April 21, 2004, submission at 4 and Jostoco's 
April 28, 2004 submission at 4.
    However, we find that the third collapsing criterion has not been 
met in this case because a significant potential for manipulation of 
price or production no longer exists among Camimex and Jostoco. As 
explained above, there was a level of common ownership between and 
among these companies for the first four months of the POI which would 
facilitate the manipulation of prices; however, this relationship no 
longer exists. We note that Jostoco purchased frozen shrimp (subject 
merchandise) from Camimex and Jostoco sold fresh shrimp to Camimex. See 
Camimex's April 23, 2004, submission at 41 and Camimex's April 23, 
2004, submission at Exhibit 6. This leads us to believe that the 
operations of Camimex and Jostoco during the first four months of the 
POI may have been intertwined. However, based on the circumstances 
during two months of the POI, in following the guidance of 19 CFR 
351.401(f), that there is not a significant potential for manipulation 
of price or production between these parties. Consequently, collapsing 
these entities is not appropriate at this time.

Non-Market Economy Country

    In a previous investigation, the Department has determined that 
Vietnam is an NME. 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 214986 
(January 31, 2003). In accordance with section 771(18)(C)(i) of the 
Tariff Act of 1930, as amended ("the Act"), the presumption of NME 
status remains in effect until revoked by the Department. See Notice of 
Final Determination of Sales at Less Than Fair Value: Saccharin From 
the People's Republic of China, 68 FR 27530 (May 20, 2003). The 
presumption of NME status for Vietnam has not been revoked by the 
Department and remains in effect for purposes of the initiation of this 
investigation.
    On June 14, 2004, the GOV submitted comments regarding the 
Department's treatment of Vietnam as an NME. We appreciate the GOV's 
efforts in reforming their economy; however, while we appreciate being 
apprised by the GOV of their continued efforts in this matter, our law 
and process does not contemplate ongoing monitoring or review of 
developments in the Vietnamese economy in this context.
    Therefore, for purposes of this preliminary determination, Vietnam 
has been treated as an NME country. In accordance with section 
771(18)(C)(i) of the Act, any determination that a foreign country is 
an NME country shall remain in effect until revoked by the 
administering authority. See also Tapered Roller Bearings and Parts 
Thereof, Finished and Unfinished, from the People's Republic of China: 
Preliminary Results 2001-2002 Administrative Review and Partial 
Rescission of Review, 68 FR 7500 (February 14, 2003). When the 
Department is investigating imports from an NME, section 773(c)(1) of 
the Act directs us to base the normal value on the NME 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.

Surrogate Country

    When the Department is investigating imports from an NME country, 
section 773(c)(1) of the Act directs it to base normal value ("NV"), 
in most circumstances, on the NME 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, in valuing the factors of production, the Department shall 
utilize, to the extent possible, the prices or costs of factors of 
production in one or more market-economy countries that are at a level 
of economic development comparable to that of the NME country and are 
significant producers of comparable merchandise. The sources of the 
surrogate values we have used in this investigation are discussed under 
the NV section below.
    The Department determined that Bangladesh, Pakistan, India, 
Indonesia, and Sri Lanka are countries comparable to Vietnam in terms 
of economic development. See Memorandum from Ron Lorentzen to James 
Doyle: Antidumping Duty Investigation on Certain Frozen and Canned 
Warmwater Shrimp from the Socialist Republic of Vietnam, dated March 9, 
2004. We select an appropriate surrogate country based on the 
availability and reliability of data from the countries. See Department 
Policy Bulletin No. 04.1: Non-Market Economy Surrogate Country 
Selection Process ("Policy Bulletin"), dated March 1, 2004. In this 
case, we have found that Bangladesh is a significant producer of 
comparable merchandise, frozen and canned warmwater shrimp, and is at a 
similar level of economic development pursuant to section 733(c)(4) of 
the Act. See Surrogate Country Memo at 7. Since our issuance of the 
Surrogate Country Memo, we have not received comments from interested 
parties.

Separate Rates

    In proceedings involving NME countries, the Department has a 
rebuttable presumption that all companies within the country are 
subject to government control and thus should be assessed a single 
antidumping duty rate. It is the Department's policy to assign all 
exporters of merchandise subject to investigation in an NME 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

[[Page 42679]]

mandatory respondents and the Section A respondents have provided 
company-specific information and each has stated that it met the 
standards for the assignment of a separate rate.
    We have considered whether each Vietnam company is eligible for a 
separate rate. The Department's separate-rate test is not concerned in 
general, with macroeconomic/border-type controls, e.g., export 
licenses, quotas, and minimum export prices, 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 from 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 NME 
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, 56 FR at 20589.
    Our analysis shows that the evidence on the record supports a 
preliminary finding of de jure absence of governmental control for 
certain companies based on the following: (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; and (3) any other formal 
measures by the government decentralizing control of companies. See 
Memorandum to Edward C. Yang, Director, Non-Market Economy Unit, Import 
Administration, from Nicole Bankhead and Irene Gorelick, Case Analysts 
through James C. Doyle, Program Manager, Certain Frozen and Canned 
Warmwater Shrimp from the Socialist Republic of Vietnam: Separate Rates 
for Producers/Exporters that Submitted Questionnaire Responses, dated 
July 2, 2004 ("Separate-Rates Memo").
2. Absence of De Facto Control
    Typically the Department 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). An analysis of de facto control is critical in 
determining whether respondents export activities are in fact subject 
to a degree of government control which would preclude the Department 
from assigning separate rates.
    We determine that, for the mandatory respondents and certain 
Section A respondents, the evidence on the record supports a 
preliminary finding of de facto absence of governmental control based 
on record statements and supporting documentation showing the 
following: (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. For a detailed 
discussion of the company-specific analysis, please see the Separate 
Rates Memo.
    Therefore, the evidence placed on the record of this investigation 
by the mandatory respondents and certain Section A respondents 
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 have granted separate, company-specific rates to the 
mandatory respondents and certain Section A respondents which shipped 
certain frozen and canned warmwater shrimp to the United States during 
the POI. For a full discussion of this issue and list of Section A 
respondents, please see the Separate-Rates Memo.

Vietnam-Wide Rate

    The Department has data that indicates there are more known 
exporters of the certain frozen and canned warmwater shrimp from 
Vietnam during the POI than responded to our quantity and value 
("Q&V") questionnaire. See Respondent Selection Memo. Although we 
issued the Q&V questionnaire to 12 known Vietnamese exporters of 
subject merchandise, we received Q&V questionnaire responses from 
thirty-eight companies, including those from the four mandatory 
respondents. In addition, we received thirty-eight Section A 
questionnaire responses by the due date. Although we received the exact 
same number of Q&V questionnaire responses as Section A questionnaire 
responses, we note that the companies who responded to the Q&V 
questionnaire did not necessarily respond to the Section A 
questionnaire. Also, on January 29, 2004, we issued a Section A 
questionnaire to the GOV. Although all exporters were given an 
opportunity to provide information showing they qualify for separate 
rates, not all of these other exporters provided a response to either 
the Department's Q&V questionnaire or its Section A questionnaire. 
Further, the GOV did not respond to the Department's questionnaire. 
Therefore, the Department determines preliminarily that there were 
exports of the merchandise under investigation from other Vietnam 
producers/exporters, which are treated as part of the countrywide 
entity.
    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

[[Page 42680]]

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.
    Pursuant to section 782(e) of the Act, the Department shall not 
decline to consider submitted information if all of the following 
requirements are met: (1) The information is submitted by the 
established deadline; (2) the information can be verified; (3) the 
information is not so incomplete that it cannot serve as a reliable 
basis for reaching the applicable determination; (4) the interested 
party has demonstrated that it acted to the best of its ability; and 
(5) the information can be used without undue difficulties.
    Information on the record of this investigation indicates that 
there are numerous producers/exporters of the certain frozen and canned 
warmwater shrimp in Vietnam. As described above, all exporters were 
given the opportunity to respond to the Department's questionnaire. 
Based upon our knowledge of the volume of imports of subject 
merchandise from Vietnam and the fact that information indicates that 
the responding companies did not account for all imports into the 
United States from Vietnam, we have preliminary determined that certain 
Vietnam exporters of certain frozen and canned warmwater shrimp failed 
to respond to our questionnaires. As a result, use of facts available 
("FA") pursuant to section 776(a)(2)(A) of the Act is appropriate. 
Additionally, in this case, the GOV did not respond to the Department's 
questionnaire, thereby necessitating the use of FA to determine the 
Vietnam-wide rate. 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).
    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 Notice of Final 
Determination of Sales at Less Than Fair Value: Certain Cold-Rolled 
Flat-Rolled Carbon-Quality Steel Products from the Russian Federation, 
65 FR 5510, 5518 (February 4, 2000), See also "Statement of 
Administrative Action" accompanying the URAA, H.R. Rep. No. 103-316, 
870 (1994) ("SAA"). We find that, because the Vietnam-wide entity and 
certain producers/exporters did not respond at all to our request for 
information, they have failed to cooperate to the best of their 
ability. Therefore, the Department preliminarily finds that, in 
selecting from among the facts available, an adverse inference is 
appropriate.
    In accordance with our standard practice, as adverse facts 
available ("AFA"), we have assigned to the Vietnam-wide entity the 
higher of the highest margin stated in the notice of initiation (i.e., 
the recalculated petition margin) or the highest margin calculated for 
any respondent in this investigation. See e.g., Notice of Final 
Determination of Sales at Less Than Fair Value: Certain Cold-Rolled 
Carbon Quality Steel Products from the Socialist Republic of Vietnam, 
65 FR 34660 (May 31, 2000), and accompanying decision memorandum at 
Comment 1. In this case, we have applied a rate of 93.13 percent, the 
highest rate calculated in the Initiation Notice of the investigation 
from information provided in the petition. 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).

Corroboration of Information

    Section 776(b) of the Act authorizes the Department to use as AFA 
information derived from the petition, the final determination from the 
LTFV investigation, a previous administrative review, or any other 
information placed on the record.
    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. 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. As explained 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) ("Japan Notice"), to 
corroborate secondary information, the Department will, to the extent 
practicable, examine the reliability and relevance of the information 
used.
    The Petitioners' methodology for calculating the export price and 
NV in the petition is discussed in the initiation notice. See 
Initiation Notice, 69 FR at 3876. To corroborate the AFA margin of 
93.13 percent, we compared that margin to the margins we found for the 
respondents.
    As discussed in the Memorandum to the File regarding the 
corroboration of the AFA rate, dated July 2, 2004, we found that the 
margin of 93.13 percent has probative value. See Memorandum to the File 
from Alex Villanueva, Senior Case Analyst through James C. Doyle, 
Program Manager and Edward C. Yang, Director, NME Unit, Preliminary 
Determination in the Investigation of Certain Frozen and Canned 
Warmwater Shrimp from the Socialist Republic of Vietnam, Corroboration 
Memorandum ("Corroboration Memo"), dated July 2, 2004. Accordingly, 
we find that the highest margin, based on the petition information as 
described above, of 93.13 percent is corroborated within the meaning of 
section 776(c) of the Act.
    Consequently, we are applying a single antidumping rate--the 
Vietnam-wide rate--to producers/exporters that failed to respond to the 
Q&V questionnaire or Section A questionnaire, as well as to exporters 
which did not demonstrate entitlement to a separate rate. See e.g., 
Final Determination of Sales at Less Than Fair Value: Synthetic Indigo 
from the Socialist Republic of Vietnam, 65 FR 25706, 25707 (May 3, 
2000). The Vietnam-wide rate applies to all entries of the merchandise 
under investigation except for entries from the four mandatory 
respondents and certain Section A respondents.
    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

[[Page 42681]]

Vietnam-wide margin. See Notice of Preliminary Determination of Sales 
at Less Than Fair Value: Saccharin from the People's Republic of China, 
67 FR 79049, 79053-54 (December 27, 2002).

Margins for Section A Respondents

    The exporters which submitted responses to Section A of the 
Department's antidumping questionnaire and had sales of the subject 
merchandise to the United States during the POI, but were not selected 
as mandatory respondents in this investigation (Section A respondents), 
have applied for separate rates and provided information for the 
Department to consider for this purpose. Therefore, for the Section A 
respondents which provided sufficient evidence that they are separate 
from the countrywide entity and answered other questions in section A 
of the questionnaire, we have established a weighted-average margin 
based on the rates we have calculated for the four mandatory 
respondents, 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.

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 respondents. We made 
this determination because, the record evidence does not demonstrate 
that any alternative date of sale used by the respondent that 
establishes the material terms of sale. See Saccharin from China, 67 FR 
at 79054.

Appropriate Basis for Comparison

    On May 24, 2004, the Department requested comments from interested 
parties on whether product comparisons and margin calculations in this 
investigation should be performed based on data provided on an "as 
sold" basis or whether those comparisons and calculations should be 
performed on data converted to a headless, shell-on ("HLSO") basis.
    On June 4, 2004, the Department received comments on HLSO 
comparison from Shantou Red Garden Foodstuff Co., Ltd. ("Red 
Garden"). On June 7, 2004, and June 10, 2004, the Department received 
comments from the Petitioners in support of subject merchandise on an 
HLSO basis. Red Garden argues that by valuing shrimp products on an 
HLSO basis, when a significant quantity of such products are not sold 
on an HLSO basis, effectively requires converting shrimp products from 
a non-HLSO basis to an HLSO basis by employing conversion coefficients 
to the quantities and values of the subject merchandise. This 
conversion method alters the count-sizes and prices of shrimp in many 
instances where count-size and prices were not sold on an HLSO basis, 
but were subsequently converted for this investigation to an HLSO 
basis. Several other comments were submitted by interested parties both 
in support of and in opposition to calculating a margin on an HLSO 
basis, although those comments pertained to the Department's market 
economy analysis of product comparisons in the U.S., home, and/or third 
country markets. Since the market economy methodology of product 
comparisons does not apply in NME investigations, those comments will 
be addressed in the preliminary determinations for the market economy 
countries subject to this investigation.
    Section 773(c)(1)(B) of the Act requires that the Department value 
the factors of production that a respondent uses to produce the subject 
merchandise. The Department notes that it will be less accurate to rely 
on HLSO quantities sold and HLSO values of the subject merchandise, 
rather than relying on actual quantities sold and actual values of the 
subject merchandise.
    The Petitioners argue that using an HLSO conversion method will 
give a consistent basis for weight-averaging the unit margins in the 
calculation of the overall weight-averaged margin. To achieve the 
consistent measuring basis, the Petitioners' suggest converting actual 
quantities and values of subject merchandise sold by HLSO coefficients 
to standardize the different types of subject merchandise sold.
    The Department examined the Petitioners' suggested methodology, 
which seeks to achieve a consistent measuring standard by adjusting 
subject merchandise product values and yields on a HLSO basis. However, 
the Department's current NME methodology for calculating margins also 
achieves consistency through valuing subject merchandise on an actual, 
as sold basis. The Department notes that when calculating the estimated 
weighted-average margin, the Department totals the margins for all 
CONNUMs to derive the total dumping margin of the company. The values 
generated from totaling the margins and sales values for all CONNUMs do 
not require converting quantities to the same basis.
    The Petitioners also argue that the CONNUM assignment should be 
altered to place more weight on the species of subject merchandise, as 
it is the species type that is a predominant factor in determining 
shrimp prices. However, the Department notes that the placement of the 
shrimp species category in the order of CONNUM assignments does not 
increase or decrease the weight given to that category in nonmarket 
economy margin calculations. In the NME margin calculation methodology, 
the CONNUM hierarchy is inconsequential to the normal value 
calculation, because each CONNUM characteristic is afforded equal 
weight when calculating CONNUM-specific normal values. However, as this 
issue is relevant to the market economy margin calculation methodology, 
this issue will be addressed by the preliminary determinations of the 
market economy countries subject to this investigation.

Fair Value Comparisons

    To determine whether sales of certain frozen and canned warmwater 
shrimp to the United States of the four mandatory respondents were made 
at less than fair value, we compared export price ("EP") to NV, as 
described in the "U.S. Price" and "Normal Value" sections of this 
notice.

U.S. Price

    In accordance with section 772(a) of the Act, we used EP for four 
of the mandatory respondents because the subject merchandise was 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, and 
because the use of constructed export price was not otherwise 
indicated.
    We calculated EP based on the Cost & Freight, Free on Board or 
delivered price to unaffiliated purchasers in, or for exportation to, 
the United States. We made deductions, as appropriate, for any movement 
expenses (e.g., foreign inland freight from the plant to the port of 
exportation, international freight, marine insurance, cold-storage & 
warehousing, containerization and U.S. brokerage and handling) in 
accordance with section 772(c)(2)(A) of the Act. For a detailed 
description of all adjustments, see the company-specific analysis 
memorandum dated July 2, 2004. For a discussion of the surrogate

[[Page 42682]]

values used for the movements deductions, please see the Memo to the 
File from Paul Walker through James C. Doyle, Program Manager to Edward 
C. Yang, Office Director, Regarding Factor Valuations ("Factor 
Valuation Memo"), dated July 2, 2004 at 8-9 and at Exhibit 6.
    For one Respondent, for certain sales, we used a starting EP price 
that differed from the gross unit invoice price that was used for the 
other Respondents because this Respondent demonstrated that its gross 
unit invoice price was not the price ultimately paid by one of its U.S. 
customers. Therefore, for U.S. sales made by this Respondent that were 
paid by this U.S. customers, we used an alternative price paid as 
provided in its U.S. sales database. For a detailed discussion of this 
issue, please see the company-specific analysis memorandum.

Headless, Shell-On ("HOSO") Shrimp

    In their initial C and D questionnaire responses, the Respondents 
submitted their factors of production on a basis other than HOSO 
because their payment for the fresh shrimp input was based on a non-
HOSO basis. However, after analyzing the Respondents' data, the 
Department found that the Respondents should have provided the data on 
an HOSO basis. In supplemental questionnaires, the Department asked the 
Respondents to submit factors of production on an HOSO basis. In their 
supplemental questionnaire responses, the Respondents chose not to 
provide their factors of production on an HOSO basis, but instead 
provided company-specific conversion factors to adjust the non-HOSO 
basis factors of production to an HOSO basis. Because the surrogate 
value used to value fresh shrimp is on an HOSO basis, the Department 
recalculated the Respondents' fresh shrimp factor of production using 
the company-specific conversion factors. For a detailed discussion of 
the conversion factors, please see the company-specific analysis 
memorandums. However, for one Respondent, Kim Ahn, the Department did 
not receive a company-specific conversion factor to adjust the non-HOSO 
factors of production to an HOSO basis in the supplemental 
questionnaire response.

Partial Adverse Facts Available

    With regard to Kim Ahn's HOSO conversion factor, we have applied 
partial AFA because Kim Ahn failed to provide the conversion factor for 
the HOSO conversion.
    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. We note that all three other Respondents provided this 
information and that all four Respondents, including Kim Ahn, have a 
similar production process. In addition, Kim Ahn did not provide an 
estimate of this conversion factor in its response. Therefore, facts 
available are appropriate because Kim Ahn failed to provide an HOSO 
conversion factor in its supplemental questionnaire response.
    Section 776(b) of the Act provides that, if the Department finds 
that an interested party "has failed to cooperate by not acting to the 
best of its ability to comply with a request for information," the 
Department may use information that is adverse to the interests of that 
party as facts otherwise available.
    Therefore, pursuant to section 776(b) of the Act, the Department 
finds that in selecting from among the facts available, an adverse 
inference is appropriate, as Kim Ahn failed to cooperate to the best of 
its ability by not providing the HOSO conversion factor because it 
chose not to report it or offer an estimate of this conversion factor.
    Adverse inferences are appropriate "to ensure that the party does 
not obtain a more favorable result by failing to cooperate than if it 
had cooperated fully." See Statement of Administrative Action 
("SAA") accompanying the URAA, H.R. Doc. No. 316, 103d Cong., 2d 
Session at 870 (1994). An adverse inference may include reliance on 
information derived from the petition, the final determination in the 
investigation, any previous review, or any other information placed on 
the record. See section 776(b) of the Act. We are applying the highest 
HOSO conversion factor reported by the three other Respondents.

Normal Value

    Section 773(c)(1) of the Act provides that the Department shall 
determine the NV using a factors-of-production methodology if the 
merchandise is exported from an NME country and 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. 
The Department will base NV on factors of production because the 
presence of government controls on various aspects of these economies 
renders price comparisons and the calculation of production costs 
invalid under its normal methodologies.
    For purposes of calculating NV, we valued the Vietnam factors of 
production in accordance with section 773(c)(1) of the Act. Factors of 
production include, but are not limited to hours of labor required, 
quantities of raw materials employed, amounts of energy and other 
utilities consumed, and representative capital costs, including 
depreciation. In examining surrogate values, we selected, where 
possible, the publicly available value which was an average non-export 
value, representative of a range of prices within the POI or most 
contemporaneous with the POI, product-specific, and tax-exclusive. We 
used the usage rates reported by respondents for materials, energy, 
labor, by-products, and packing. For a more detailed explanation of the 
methodology used in calculating various surrogate values, see Factor 
Valuation Memo.

Factor Valuations

    We calculated NV based on factors of production reported by 
respondents for the POI. To calculate NV, we multiplied the reported 
per-unit factor quantities by publicly available Bangladesh surrogate 
values (except as discussed 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 to 
Bangladesh import surrogate values a surrogate freight cost 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.
    With regard to surrogate values and the market-economy input 
values, we have disregarded prices that we have reason to believe or 
suspect may be subsidized. We have reason to believe or suspect that 
prices of inputs from Indonesia, South Korea, and Thailand may have 
been subsidized. We have found in other proceedings that these 
countries maintain broadly available, non-industry-specific export 
subsidies

[[Page 42683]]

and, therefore, it is reasonable to infer that all exports to all 
markets from these countries may be subsidized. See Final Determination 
of Sales at Less Than Fair Value: Certain Helical Spring Lock Washers 
From The People's Republic of China and accompanying Issues and 
Decision Memorandum, 61 FR 66255 (February 12, 1996) at Comment 1. The 
legislative history provides that in making its determination as to 
whether input value may be subsidized, the Department is not required 
to conduct a formal investigation, rather, Congress directed the 
Department to base its decision on information that is available to it 
at the time it makes its determination. See H.R. Rep. 100-576 at 590 
(1988). Therefore, based on the information currently available, we 
have not used prices from these countries either in calculating the 
Indian import-based surrogate values or in calculating market-economy 
input values. In instances where a market-economy input was obtained 
solely from suppliers located in these countries, we used Bangladeshi 
import-based surrogate values to value the input.
    Except as discussed below, the Department used United Nations 
ComTrade Statistics ("UN ComTrade"), provided by the United Nations 
Department of Economic and Social Affairs' Statistics Division, as its 
primary source of Bangladeshi surrogate value data.\6\ The data 
represents cumulative values for the calendar year 2001, for inputs 
classified by the Harmonized Commodity Description and Coding System 
("HS") number. For each input value, we used the average value per 
unit for that input imported into Bangladesh from all countries the 
Department has not previously determined to be non-market economy 
("NME") countries. Import statistics from countries the Department 
has determined to be NME countries which subsidized exports (i.e., 
Indonesia, Korea, Thailand) were excluded in the calculation of average 
value. See Notice of Final Determination of Sales at Less Than Fair 
Value and Negative Final Determination of Critical Circumstances: 
Certain Color Television Receivers From the People's Republic of China 
("CTVs from the PRC"), 69 FR 20594 (April 16, 2004).
---------------------------------------------------------------------------

    \6\ This can be accessed online at: unstats.un.org/unsd/
comtrade/.
---------------------------------------------------------------------------

    It is the Department's practice to calculate price index adjustors 
using the wholesale price index for the subject country. See Notice of 
Preliminary Determination of Sales at Less Than Fair Value and 
Postponement of Final Determination: Hand Truck and Certain Parts 
Thereof from the People's Republic of China, 69 FR 29509 (May 24, 
2004). However, in this case, a wholesale price index was not available 
for Bangladesh. Therefore, where publicly available information 
contemporaneous with the POI with which to value factors could not be 
obtained, surrogate values were adjusted using the Consumer Price Index 
("CPI") rate for Bangladesh, as published in the International 
Financial Statistics ("IFS") of the International Monetary Fund 
("IMF").
    Certain surrogate values were calculated using data from the 2001 
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 2001. Unit values were initially 
calculated in takas/unit. Since the values from Bangladesh government 
statistics were not contemporaneous with the POI, we adjusted the rate 
for inflation and converted the values to USD/kg using the Department's 
exchange rate for Bangladesh.
    Bangladeshi surrogate values denominated in foreign currencies were 
converted to USD using the applicable average exchange rate for 
Bangladesh for the POI. The average exchange rate was based on exchange 
rate data from the Department's Web site.

Raw Shrimp Surrogate Value

    Certain Respondents explained that a small percentage of subject 
merchandise was produced using frozen shrimp and not fresh raw shrimp 
as the main input, which was used for an overwhelming majority of their 
U.S. sales. In supplemental questionnaires, we asked these Respondents 
to link their subject merchandise sales to the frozen shrimp input. Of 
the Respondents who purchased frozen shrimp as the input to produce the 
subject merchandise, only one Respondent was able to link its U.S. sale 
to the frozen shrimp input. However, an analysis of the factors of 
production for this U.S. sale demonstrates that the factors of 
production are identical to those CONNUMs for sales that did not use 
frozen shrimp as an input. In addition, this Respondent explained that 
once it received the frozen shrimp, it was thawed and processed similar 
to those that are fresh. However, the surrogate values submitted by 
Respondents for frozen shrimp did not include a surrogate value for the 
count size for this frozen shrimp input. Although we recognize that 
valuing the shrimp input on a frozen shrimp basis would be more 
accurate, we have preliminarily determined that we do not have the 
surrogate value for this count size, we will apply the HOSO raw shrimp 
surrogate value.
    In addition, the Department notes that the value of the main input, 
HOSO shrimp, is an important factor of production in our dumping 
calculation as it accounts for a significant percentage of normal 
value. As a general matter, the Department prefers to use publicly 
available data to value surrogate values from the surrogate country to 
determine factor prices that, among other things: represent a broad 
market average; are contemporaneous with the POI; and are specific to 
the input in question. In this instance, none of the values placed on 
the record by the Respondents or the Petitioners wholly satisfies all 
three of these requirements.
    The Department only considers using surrogate values outside the 
primary surrogate country if there are no values from that country 
available or if it decides that the values available are aberrational 
or otherwise unsuitable for use. The Respondents and the Petitioners 
have placed numerous Bangladeshi shrimp values on the record. In this 
case, the Department has found a suitable surrogate value for shrimp 
from the surrogate country. Therefore, using a surrogate value from a 
country other than one from Bangladesh is not necessary. Consequently, 
the Department did not use any shrimp values from a surrogate country 
other than Bangladesh.
    The Department notes that the Petitioners and Respondents have 
argued at different times that count size is an important factor in the 
CONNUM creation. See Petitioners submission of February 4, 2004, at 3, 
and Respondents February 4, 2004, submission at Attachment 1. A review 
of the record shows that only the Respondents made an effort at 
creating count size shrimp valuations on the record. However, an 
analysis of the Respondents' count size methodology demonstrates that 
the final count size prices suggested by the Respondents relied upon 
numerous assumptions.
    The Respondents began their count-size specific price analysis by 
using two prices, one for small shrimp and another for medium shrimp on 
a HOSO shrimp basis sold in Bangladeshi markets as obtained from the 
internet site of the Bangladeshi publication New Age Business. In order 
to convert these prices to count-size specific prices, the Respondents 
adjusted the New Age Business shrimp prices for medium and small shrimp 
to specific count sizes of shrimp using a definition of count sizes

[[Page 42684]]

as provided by the Monterey Bay Aquarium. Specifically, the Respondents 
assigned the small Bangladeshi market price to count sizes 36/40 and 
41/50 and the assigned the medium price to count sizes 51/60 and 61/70. 
In order to value the remaining count sizes, the Respondents calculated 
adjustments necessary to derive the Bangladeshi values of shrimp with 
count sizes larger than the medium 36/40 and 41/50 count sizes as well 
as those shrimp smaller than the 51/60 count size by using count size 
specific prices reported for Thai shrimp as offered by 
FoodmarketExhange.com for September 2003.
    Consequently, based on the evidence on the record, the Department 
finds that the count-size specific surrogate value submitted by the 
Respondents is not the most appropriate basis for valuing the raw 
shrimp input. Although the Department would prefer to use count-size 
specific surrogate values for the raw shrimp input, because there are 
several assumptions the Respondents make in creating the index that 
call into question the reliability of their price for the shrimp input, 
we did not use it in our margin calculations. Although the Respondents 
began their count size prices with Bangladeshi prices, only two prices 
were obtained for small and medium shrimp. The Respondents did not have 
prices for large shrimp, which are being sold to the United States 
during the POI. In addition, the count size distribution proposed by 
the Respondents is from Monterey Bay Aquarium in the United States, not 
Bangladesh. Although the Respondents argue this distribution is similar 
to an industry standard, they did not provide evidence to show how this 
compares to count sizes in Bangladesh, the surrogate country. For 
example, New Age Business lists a Bangladeshi converted price for 
medium-sized shrimp, but does not specifically list a count size for 
medium-sized shrimp. This has led the Respondents to arbitrarily place 
the converted price for Bangladeshi medium-sized shrimp into a U.S. 
based count size range as provided by the Monterey Bay Aquarium.
    A review of the data submitted by the Respondents shows that this 
index is not a broad market average and is contemporaneous with only 
one week of the POI. See Respondents May 21, 2004, submission at 
Exhibit 3. It is clear that the Respondents' newspaper prices (New Age 
Busines) do not represent a broad market average, rather, they 
represent price quotes which are subject to temporary market 
fluctuations. As the Respondents stated in their June 9, 2004, 
submission, the surrogate values for shrimp "represent a range of 
price quotes available on the date the prices were obtained." See 
Respondents June 9, 2004, submission at 5. Broad market averages 
reflect values covering a substantial time frame making them less 
subject to temporary market fluctuations which would likely be reported 
in a newspaper. An example of this kind of fluctuation appears in the 
September 6, 2003, New Age Business article which includes statements 
that explain high or rising commodity prices as the result of 
disruption of trade with Myanmar. See Respondents May 21, 2004, 
submission at Exhibit 3.
    In addition, we note that the basis for the prices used in this 
index are based on prices within Thailand, which is not one of the 
potential surrogate countries from the list provided by the Office of 
Policy. See the Department's March 12, 2004, letter to all interested 
parties concerning surrogate country selection.
    Therefore, for the reasons stated above and because the HOSO shrimp 
surrogate price is critical to our analysis, we have chosen not to use 
the Respondents' index for this preliminary determination.
    As a result, the Department valued raw, head-on, shell-on 
("HOSO") shrimp, the main input to the subject merchandise, using 
data from the financial statement of a Bangladeshi company that 
processes shrimp, Apex Foods Limited ("Apex"). The data from Apex is 
specific to the price of raw shrimp, the factor of production 
accounting for a significant percentage of normal value. In addition, 
the financial statement is contemporaneous for three months of the POI, 
April 1, 2003, to June 30, 2003. Additionally, we recognize that 
although this price is not count-size specific, the alternative count-
size specific prices proposed by the Respondents are less reliable than 
the price from Apex. Specifically, we note that Apex's figure 
represents the average price of all shrimp purchased during a 12-month 
period which would capture any daily, weekly or monthly differences in 
prices during this 12-month period. The Department has relied upon 
prices from Apex's financial statements in prior investigations. See 
Notice of Final Antidumping Duty Determination of Sales at Less Than 
Fair Value and Affirmative Critical Circumstances: Certain Frozen Fish 
Fillets from the Socialist Republic of Vietnam and accompanying Issues 
and Decision Memorandum, ("Fish Fillets") 68 FR 37116 (June 23, 2003) 
at Comment 14. For a discussion of other shrimp surrogate values, 
please see the Factor Valuation Memo at 4-6.

Other Factor Surrogate Values

    To value phosphates, non-phosphates, salt and chlorine, we used UN 
ComTrade data as the primary source of Bangladeshi surrogate value 
data.
    To value water, we used the average water tariff rate as reported 
in the Asian Development Bank's Second Water Utilities Data Book: Asian 
and Pacific Region ("ADB's Water Utility Book") (1997), based on the 
average of the Bangladeshi taka per cubic meter ("m3") 
rate for two cities in Bangladesh. We adjusted the average cost of 
water for the two cities for inflation and converted the value to USD. 
See Factor Valuation Memo at Exhibit 4.
    To value electricity, the Department used a rate of 1.94 taka/kwh 
from Bangladesh government statistics. As the rate was not 
contemporaneous with the POI, we adjusted the rate for inflation and 
converted the value to USD. See Factor Valuation Memo at Exhibit 8.
    To value natural gas, the Department used a rate of 2060 taka/
m3 from Bangladesh government statistics. As the rate was 
not contemporaneous with the POI, we adjusted the rate for inflation 
and converted the value to USD. See Factor Valuation Memo at Exhibit 8.
    To value diesel fuel, the Department used a rate of 13.88 taka/kg 
from Bangladesh government statistics. As the rate was not 
contemporaneous with the POI, we adjusted the rate for inflation and 
converted the value to USD. See Factor Valuation Memo at Exhibit 8.
    Section 351.408(c)(3) of the Department's regulations requires the 
use of a regression-based wage rate. Therefore, to value the labor 
input, the Department used the regression-based wage rate for Vietnam 
published by Import Administration on our website. The source of the 
wage rate data is the Yearbook of Labour Statistics 2001, published by 
the International Labour Office ("ILO"), (Geneva: 2001), Chapter 5B: 
Wages in Manufacturing. See the Import Administration Web site: 
http://ia.ita.doc.gov/wages/01wages/01wages.html.

    To value the by-products, the Department used a surrogate value for 
shrimp by-products based on a purchase price quote for wet shrimp 
shells from an Indonesian buyer of crustacean shells. Although we 
recognize that the Respondents reported by-products other than shells 
and that this surrogate value is not from Bangladesh, the primary 
surrogate, this information represents the best information on the 
record and is being used for this preliminary

[[Page 42685]]

determination. See Factor Valuation Memo at Exhibit 7.
    To value packing materials, we used UN ComTrade data as the primary 
source of Bangladeshi surrogate value data.
    To value factory overhead ("FOH"), Selling, General & 
Administrative ("SG&A") expenses, and profit, we used the 2002-2003 
financial statement of Apex Foods Limited ("Apex"), a Bangladeshi 
shrimp processor. See Factor Valuation Memo at Exhibit 9.

Critical Circumstances

    On May 19, 2003, 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 and canned 
warmwater shrimp from Vietnam. On May 27, 2003, the respondents 
submitted comments on the petitioners' allegation of critical 
circumstances. In accordance with 19 CFR 351.206(c)(2)(i), because the 
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 that 
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 condisered (i) the evidence presented by the petitioners 
in their May 19, 2003, filing; (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 determination of material injury by reason 
of imports.
    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 and canned warmwater shrimp 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 in any country on certain frozen and canned warmwater 
shrimp 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.
    To determine whether 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 in 
accordance with 733(e)(1)(A)(ii) of the Act, 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 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).
    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 Memo, we 
find that a sufficient basis exists for finding that importers, 
exporters, or producers knew or should have known an antidumping case 
was pending on certain frozen and canned shrimp imports from Vietnam by 
August 2003, at the latest. Therefore, in accordance with section 
351.206(i) of the Department's regulations, we determine December 2002 
through August 2003 should serve as the critical circumstances "base 
period," while September 2003 through May 2004 should serve as the 
"comparison period" in determining whether or not imports have been 
massive in the comparison period.
    In this case, the total volume of imports of certain frozen and 
canned warmwater shrimp from Vietnam increased 28.84 percent from the 
critical circumstances base period (December 2002 through August 2003 ) 
to the critical circumstances comparison period (September 2003 through 
May 2004).
    For three of the Respondents and the Section A Respondents, we 
preliminarily determine that importers 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 in pursuant to 733(e)(1)(A)(ii) of the Act, because the 
calculated margins were not above 25 percent or more for export price 
sales which is sufficient to impute knowledge of dumping. In addition, 
the volume of imports of certain frozen and canned warmwater shrimp 
from these Respondents were not above 15 percent

[[Page 42686]]

See Critical Circumstance Memo at Attachment I. Therefore, we 
preliminarily determine that these Respondents's imports were not 
massive pursuant to 733(e)(1)(B) of the Act. Therefore, we 
preliminarily find that no critical circumstances exist.
    For one Respondent, we preliminarily determine that importer had no 
reason to know 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 pursuant to 733(e)(1)(A)(ii) of the Act, 
because the calculated margins were not above 25 percent or more for 
export price sales, which is sufficient to impute knowledge of dumping. 
However, the volume of imports of certain frozen and canned warmwater 
shrimp from this Respondent was above 15 percent See Critical 
Circumstance Memo at Attachment I. Although this Respondent had 
"massive" imports pursuant to 733(e)(1)(B) of the Act, the Department 
did not find that this Respondent had reason to know dumping existed. 
because its calculated dumping margin below 25 percent or more for 
export price sales as required under 733(e)(1)(A)(ii) of the Act. 
Therefore, we preliminarily find that no critical circumstances exist 
for this Respondent.
    With regard to the Vietnam-wide entity, we preliminary find that 
the importer 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 in accordance with 
733(e)(1)(A)(ii) of the Act, because the Vietnam-wide margin is above 
25 percent, which is sufficient to impute knowledge of dumping. 
However, the volume of imports of certain frozen and canned warmwater 
shrimp from the Vietnam-wide entity were not above 15 percent See 
Critical Circumstance Memo at Attachment I. Therefore, we preliminarily 
determine that the imports from the Vietnam-wide entity were not 
massive in accordance with 733(e)(1)(B) of the Act. Consequently, we 
preliminarily find that no critical circumstances exist.
    Given the analysis summarized above, and described in more detail 
in the Critical Circumstances Memo, we preliminarily determine that 
critical circumstances do not exist for imports of certain frozen and 
canned warmwater shrimp from any exporters from Vietnam.
    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 publication of the 
preliminary dumping determination.

Verification

    As provided in section 782(i)(1) of the Act, we intend to verify 
the information upon which we will rely in making our final 
determination.

Preliminary Determination

    The weighted-average dumping margins are as follows:

------------------------------------------------------------------------
                                                        Weighted-average
                Manufacturer/exporter                  margin  (percent)
------------------------------------------------------------------------
   Certain Frozen and Canned Warmwater Shrimp from Vietnam--Mandatory
                               Respondents
------------------------------------------------------------------------
Minh Phu.............................................              14.89
Kim Ahn..............................................              12.11
Camimex..............................................              19.60
Seaprodex Minh Hai...................................              18.68
Vietnam-Wide Rate....................................              93.13
------------------------------------------------------
   Certain Frozen and Canned Warmwater Shrimp from Vietnam--Section A
                               Respondents
------------------------------------------------------------------------
Amanda Foods (Vietnam) Ltd...........................              16.01
C.P. Vietnam Livestock...............................              16.01
Cai Doi Vam Seafood Import Export Company............              16.01
Can Tho Agriculture and Animal Products Import Export              16.01
 Company.............................................
Cantho Animal Fisheries Product Processing Export                  16.01
 Enterprise..........................................
Cuu Long Seaproducts Company.........................              16.01
Danang Seaproducts Import Export Company.............              16.01
Hanoi Seaproducts Import Export Corp.................              16.01
Minh Hai Export Frozen Seafood Processing Joint-Stock              16.01
 Company.............................................
Minh Hai Seaproducts Co Ltd..........................              16.01
Nha Trang Fisheries Joint Stock Company..............              16.01
Nha Trang Seaproduct Company.........................              16.01
Pataya Food Industries (Vietnam) Ltd.................              16.01
Sao Ta Foods Joint Stock Company.....................              16.01
Soc Trang Aquatic Products and General Import Export               16.01
 Company.............................................
Thuan Phuoc Seafoods and Trading Corporation.........              16.01
Viet Nhan Company....................................              16.01
------------------------------------------------------------------------

Disclosure

    We will disclose the calculations performed within five days of the 
date of publication of this notice to parties in this proceeding in 
accordance with Sec.  19 CFR 351.224(b).

Suspension of Liquidation

    In accordance with section 733(d) of the Act, we will instruct CBP 
to suspend liquidation of all entries of subject merchandise, entered, 
or withdrawn from warehouse, for consumption on or after the date of 
publication of this notice in the Federal Register. Customs shall 
require a cash deposit or the 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 will 
remain in effect until further notice.

[[Page 42687]]

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. Section 735(b)(2) requires that the ITC make a 
final determination before the later of 120 days after the date of the 
Department's preliminary determination or 45 days after the 
Department's 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 and canned warmwater 
shrimp, or sales (or the likelihood of sales) for importation, of the 
subject merchandise. Because we have postponed the deadline for our 
final determination to 135 days from the date of publication of this 
preliminary determination, the ITC will make its final determination 
within 45 days of our final determination.

Public Comment

    Case briefs or other written comments may be submitted to the 
Assistant Secretary for Import Administration no later than seven days 
after the date of the final verification report issued in this 
proceeding and rebuttal briefs limited to issues raised in case briefs, 
no later than five days after the deadline date for case briefs. 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 intend to hold the hearing three 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 after the date of publication of this notice. See 
19 CFR 351.310(c). Requests should contain the party's name, address, 
and telephone number, the number of participants, and 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.
    We will make our final determination no later than 135 days after 
the date of publication of this preliminary determination, pursuant to 
section 735(a)(2) of the Act.
    This determination is issued and published in accordance with 
sections 733(f) and 777(i)(1) of the Act.

    Dated: July 2, 2004.
James J. Jochum,
Assistant Secretary for Import Administration.
[FR Doc. 04-16111 Filed 7-15-04; 8:45 am]