Certain Frozen Fish Fillets from Vietnam: Notice of Initiation and Preliminary Results of Changed Circumstances Review

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

The Department of Commerce (“Department”) has received information sufficient to warrant initiation of a changed circumstances review of the antidumping duty order on certain frozen fish fillets from Vietnam. Based on a request filed by Vinh Hoan Co., Ltd. (“Vinh Hoan”), the Department is initiating a changed circumstances review and preliminarily determining that Vinh Hoan Corporation (“Vinh Hoan Corp.”) is the successor-in-interest to Vinh Hoan, a respondent in the original investigation and three recent administrative reviews.

EFFECTIVE DATE:

August 21, 2007.

FOR FURTHER INFORMATION CONTACT:

Javier Barrientos, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue, NW, Washington, DC 20230; telephone: 202-482-2243.

SUPPLEMENTARY INFORMATION:

Background

The antidumping duty order for certain frozen fish fillets from Vietnam was published on August 12, 2003. See Notice of Antidumping Duty Order: Certain Frozen Fish Fillets from the Socialist Republic of Vietnam, 68 FR 47909 (August 12, 2003) (“Vietnam Fish Order”). As part of the antidumping duty order on certain frozen fish fillets from Vietnam, Vinh Hoan received an antidumping duty cash deposit rate of 37.94 percent. Id. Moreover, as part of the final results of the first administrative review, Vinh Hoan received a cash deposit rate of 6.81 percent. See Certain Frozen Fish Fillets From the Socialist Republic of Vietnam: Final Results of the First Administrative Review, 71 FR 14170 (March 21, 2006). The Department initiated on Vinh Hoan in both the second and third administrative reviews; however, both reviews with regard to Vinh Hoan were subsequently rescinded. See Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Rescission, in Part, and Extension of Time Limit for Preliminary Results of the Second Antidumping Duty Administrative Review, 71 FR 6266 (February 7, 2006); and Certain Frozen Fish Fillets From the Socialist Republic of Vietnam: Partial Rescission and Notice of Intent To Rescind, in Part, and Partial Extension of Time Limit for Preliminary Results of the Third Antidumping Duty Administrative Review, 72 FR 10981 (March 12, 2007), respectively.

On June 26, 2007, Vinh Hoan filed a submission requesting that the Department conduct a changed circumstances review of the antidumping duty order on certain frozen fish fillets from Vietnam to confirm that Vinh Hoan Corp. is the successor-in-interest to Vinh Hoan.¹ In its submission, Vinh Hoan provided information on the events leading to the transition from Vinh Hoan to Vinh Hoan Corp. Vinh Hoan also provided documentation relating to its change from a limited liability company (LLC) to a joint stock company. In addition, Vinh Hoan provided documentation relating to the ownership structure and management, organizational structure, customer base, accounting processes, supplier relationships, and products. As part of its June 26, 2007, submission, Vinh Hoan requested that the Department conduct an expedited review.

Scope of Order

The product covered by this order is frozen fish fillets, including regular, shank, and strip fillets and portions thereof, whether or not breaded or marinated, of the species Pangasius Bocourti, Pangasius Hypophthalmus (also known as Pangasius Pangasius), and Pangasius Micronemus. Frozen fish fillets are lengthwise cuts of whole fish. The fillet products covered by the scope include boneless fillets with the belly flap intact (“regular” fillets), boneless fillets with the belly flap removed (“shank” fillets), boneless shank fillets cut into strips (“fillet strips/ finger”), which include fillets cut into strips, chunks, blocks, skewers, or any other shape. Specifically excluded from the scope are frozen whole fish (whether or not dressed), frozen steaks, and frozen belly-flap nuggets. Frozen whole dressed fish are deheaded, skinned, and eviscerated. Steaks are bone-in, cross-section cuts of dressed fish. Nuggets are the belly-flaps.

The subject merchandise will be hereinafter referred to as frozen “basa” and “tra” fillets, which are the Vietnamese common names for these species of fish. These products are classifiable under tariff article codes 1604.19.4000, 1604.19.5000, 0305.59.4000, 0304.29.6033 (Frozen Fish Fillets of the species Pangasius including basa and tra) of the Harmonized Tariff Schedule of the United States (“HTSUS”).⁶ This order covers all frozen fish fillets meeting the above specification, regardless of tariff classification. Although the HTSUS subheading is provided for convenience and customs purposes, our written description of the scope of the order is dispositive.

Initiation of Changed Circumstances Review

Pursuant to section 751(b)(1) of the Tariff Act of 1930, as amended (“Act”), the Department will conduct a changed circumstances review upon receipt of information concerning, or a request from an interested party for a review of, an antidumping duty order which shows changed circumstances sufficient to warrant a review of the order. Additionally, section 751(b)(4) of the Act states that the Department shall not conduct a review less than 24 months after the date of publication of the less-than-fair-value determination, in the absence of good cause. As noted above, Vinh Hoan and Vinh Hoan Corp. filed their request for a changed circumstances review on June 26, 2007, well over 24 months after the publication of the order. See Vietnam Fish Order.

Preliminary Results of the Review

Pursuant to section 751(b) of the Act, and 19 CFR 351.216, we will conduct a changed circumstances review upon receipt of information concerning, or a request from an interested party for a review of, an antidumping duty finding or order that shows changed circumstances sufficient to warrant a review of the order. The information submitted by Vinh Hoan stating the change in the entity's legal status, from an LLC to a corporation, demonstrates changed circumstances sufficient to warrant a review. See 19 CFR 351.216(d).

As noted above in the “Background” section of this notice, in its request for a changed circumstances review, Vinh Hoan stated that it underwent a change in legal status. Vinh Hoan was converted from an LLC to a joint stock company and renamed Vinh Hoan Corp. Subsequent to the name change, the majority owner of Vinh Hoan and the controlling stock holder of Vinh Hoan Corp. remained the same (Ms. Trung Thi Le Khanh). In addition, Ms. Trung still controls Vinh Hoan Corp. as its general director.

In determining whether one company is the successor-in-interest to another for purposes of applying the antidumping duty law, the Department examines several factors including, but not limited to, changes in: (1) management; (2) production facilities; (3) supplier relationships; and (4) customer base. See, e.g., Certain Warmwater Shrimp from the People's Republic of China: Notice of Initiation and Preliminary Results of Changed Circumstances Review, 72 FR 24273 (May 2, 2007). While no single factor or combination of factors will necessarily provide a dispositive indication, the Department will generally consider the new company to be the successor-in-interest to the previous company if the resulting operation, with regard to the subject merchandise, is not materially dissimilar to that of its predecessor. See, e.g., Industrial Phosphoric Acid from Israel; Final Results of Antidumping Duty Changed Circumstances Review, 59 FR 6944, 6945 (February 14, 1994); and Notice of Final Determination of Sales at Less Than Fair Value and Affirmative Final Determination of Critical Circumstances: Certain Orange Juice from Brazil, 71 FR 2183 (January 13, 2006) and accompanying Issues and Decision Memorandum, at Comment 3. Thus, if the evidence demonstrates that, with respect to the production and sale of the subject merchandise, the new company operates as the same business entity as the former company, the Department will accord the new company the same antidumping duty treatment as its predecessor.

In our analysis, we first reviewed the management structure of Vinh Hoan Corp. Vinh Hoan reported that there has been no change in the company's management or management structure after becoming Vinh Hoan Corp. See Vinh Hoan's CCR Request at 4-5. Therefore, we find that the management structure has remained unchanged.

Second, we looked at the operational structure of Vinh Hoan Corp. Vinh Hoan explained that there have been no material changes to its operations or the way it sells subject merchandise. Additionally, Vinh Hoan provided a sales process flowchart, which demonstrates how products are ordered and sold, and stated that these processes are identical between Vinh Hoan and Vinh Hoan Corp. See Vinh Hoan's CCR Request at 5-6 and Exhibit 3. We find that Vinh Hoan's operational structure has not changed as a result of becoming Vinh Hoan Corp.

Third, we reviewed the supplier relationships of Vinh Hoan and Vinh Hoan Corp. Vinh Hoan stated that it has not had any significant or material changes to its supplier base (including its food-sized fish input). See Vinh Hoan's CCR Request at 6 and Exhibit 4. We find that Vinh Hoan's supplier relationships have not changed since becoming Vinh Hoan Corp.

Fourth, we reviewed the customer base of both Vinh Hoan and Vinh Hoan Corp. Vinh Hoan explained that its, and subsequently, Vinh Hoan Corp.'s major U.S. customer remained the same. See Vinh Hoan's CCR Request at 6 and Exhibit 5. Accordingly, we find that Vinh Hoan's customer base has remained the same since becoming Vinh Hoan Corp.

In summary, Vinh Hoan reported that its conversion from Vinh Hoan to Vinh Hoan Corp. did not meaningfully affect the supplier relationships, customer base, management, marketing or sale of products and services. Moreover, there have been no material changes to Vinh Hoan's operations or the way it produces and sells subject merchandise resulting in the conversion from Vinh Hoan to Vinh Hoan Corp.

Based on evidence provided by Vinh Hoan regarding its change from an LLC to a joint stock company, and absent any other record evidence that would contradict Vinh Hoan's statements, we preliminarily determine, pursuant to section 351.221(c)(3)(ii) of the Department's regulations, that Vinh Hoan Corp. is the succesor-in-interest to Vinh Hoan. If the above preliminary results are affirmed in the Department's final results, the cash deposit rate most recently calculated for Vinh Hoan will apply to all entries of subject merchandise by Vinh Hoan Corp. entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this changed circumstances review. See, e.g., Granular Polytetrafluoroethylene Resin from Italy; Final Results of Changed Circumstances Review, 68 FR 25327 (May 12, 2003). This cash deposit rate, if imposed, shall remain in effect until further notice.

Public Comment

Any interested party may request a hearing within 30 days of publication of this notice in accordance with 19 CFR 351.310(c). Interested parties may submit case briefs no later than 30 days after the date of publication of this notice, in accordance with 19 CFR 351.309(c)(1)(ii). Rebuttal briefs, which must be limited to issues raised in the case briefs, may be filed no later than 5 days after the case briefs, in accordance with 19 CFR 351.309(d)(1). Any hearing, if requested, will normally be held two days after rebuttal briefs are due, in accordance with 19 CFR 351.310(d)(1).

The Department will issue its final results of review within 270 days after the date on which the changed circumstances review is initiated, or within 45 days if all parties to the proceeding agree to the outcome of the review, in accordance with 19 CFR 351.216(e), and will publish these results in the Federal Register.

The current requirement for a cash deposit of estimated antidumping duties on all subject merchandise will continue unless and until it is modified pursuant to the final results of this changed circumstances review.

This notice is published in accordance with sections 751(b)(1) and 777(i) of the Act and 19 CFR 351.216 of the Department's regulations.