Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Fresh Atlantic Salmon From Chile

DEPARTMENT OF COMMERCE

International Trade Administration

[A-337-803]

Notice of Amended Final Determination of Sales at Less Than Fair

Value and Antidumping Duty Order: Fresh Atlantic Salmon From Chile

AGENCY: Import Administration, International Trade Administration,

Department of Commerce.

EFFECTIVE DATE: July 30, 1998.

FOR FURTHER INFORMATION CONTACT: Gabriel Adler or Kris Campbell, Office

of AD/CVD Enforcement 2, Import Administration, International Trade

Administration, U.S. Department of Commerce, 14th Street and

Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-

1442 or (202) 482-3813, respectively.

The Applicable Statute and Regulations

Unless otherwise indicated, all citations to the statute are

references to the provisions effective January 1, 1995, the effective

date of the amendments made to the Tariff Act of 1930 (the Act) by the

Uruguay Round Agreements Act (URAA). In addition, unless otherwise

indicated, all citations to Department of

[[Page 40700]]

Commerce (the Department) regulations refer to the regulations last

codified at 19 CFR part 353 (April 1, 1997).

Amended Final Determination

On June 1, 1998, in accordance with section 735(a) of the Act, the

Department made a final determination that fresh Atlantic salmon from

Chile is being, or is likely to be, sold in the United States at less

than fair value. See Notice of Final Determination of Sales at Less

Than Fair Value: Fresh Atlantic Salmon from Chile, 63 FR 31411 (June 9,

1998) (final determination). On June 9, 1998, the Coalition for Fair

Atlantic Salmon Trade (the petitioners) and the Association of Salmon

and Trout Producers of Chile (the respondents) filed timely allegations

that the Department had made ministerial errors in its final

determination. On June 16, 1998, the petitioners and respondents each

filed comments addressing the other party's ministerial error

allegations.

We have determined, in accordance with 19 CFR 353.28, that certain

ministerial errors were made in the final determination. For a detailed

discussion of the Department's analysis of the parties' allegations of

ministerial errors, see Memorandum to Richard W. Moreland from the

Team, Regarding Clerical Error Allegations, dated July 1, 1998; see

also Memorandum from Gabriel Adler to the File, dated July 24, 1998.

Therefore, in accordance with 19 CFR 353.28(c), we are amending the

final determination of the antidumping duty investigation of fresh

Atlantic salmon from Chile. The revised final weighted-average dumping

margins are as follows:

------------------------------------------------------------------------

Original Revised

Exporter/Manufacturer margin margin

------------------------------------------------------------------------

Aguas Claras........................................ 8.27 5.44

Camanchaca.......................................... 0.21 0.16

Eicosal............................................. 10.91 10.69

Mares Australes..................................... 2.24 2.23

Marine Harvest...................................... 1.36 1.36

All Others.......................................... 5.19 4.57

------------------------------------------------------------------------

Scope of Order

The scope of this order covers fresh, farmed Atlantic salmon,

whether imported ``dressed'' or cut. Atlantic salmon is the species

Salmo salar, in the genus Salmo of the family salmoninae. Dressed

Atlantic salmon refers to salmon that has been bled, gutted, and

cleaned. Dressed Atlantic salmon may be imported with the head on or

off; with the tail on or off; and with the gills in or out. All cuts of

fresh Atlantic salmon are included in the scope of the investigation.

Examples of cuts include, but are not limited to: crosswise cuts

(steaks), lengthwise cuts (fillets), lengthwise cuts attached by skin

(butterfly cuts), combinations of crosswise and lengthwise cuts

(combination packages), and Atlantic salmon that is minced, shredded,

or ground. Cuts may be subjected to various degrees of trimming, and

imported with the skin on or off and with the ``pin bones'' in or out.

Excluded from the scope are (1) fresh Atlantic salmon that is ``not

farmed'' (i.e., wild Atlantic salmon); (2) live Atlantic salmon; and

(3) Atlantic salmon that has been subject to further processing, such

as frozen, canned, dried, and smoked Atlantic salmon, or processed into

forms such as sausages, hot dogs, and burgers.

The merchandise subject to this order is classifiable as item

numbers 0302.12.0003 and 0304.10.4093 of the Harmonized Tariff Schedule

of the United States (HTSUS). Although the HTSUS statistical reporting

numbers are provided for convenience and customs purposes, the written

description of the merchandise is dispositive.

Antidumping Duty Order

On July 22, 1998, pursuant to section 735(b)(1)(A)(i) of the Act,

the International Trade Commission (ITC) notified the Department of its

final determination that the fresh Atlantic salmon industry in the

United States is materially injured or threatened by material injury by

reason of imports of the subject merchandise from Chile.

In accordance with section 736(a)(1) of the Act, the Department

will direct the Customs Service to assess, upon further advice by the

administering authority, antidumping duties equal to the amount by

which the normal value of the merchandise exceeds the export price or

constructed export price of the merchandise for all entries of fresh

Atlantic salmon from Chile.

For purposes of determining which entries are subject to assessment

of duties, the Department must consider whether the ITC's determination

is based on material injury or the threat of material injury. Per

section 736(b)(2) of the Act, if the ITC's determination is threat-

based, and is not accompanied by a finding that injury would have

resulted but for the imposition of suspension of liquidation of entries

since the Department's preliminary determination, then the Department

will assess duties on entries made on or after the date of the

publication of the ITC's notice of final determination, and will refund

any bonds or deposits of estimated antidumping duties posted since the

Department's preliminary antidumping determination.

In this case, the ITC's notification did not indicate whether its

determination should be considered a material injury determination or a

threat determination. The vote by the three ITC Commissioners was as

follows: one vote finding material injury, one vote finding threat of

injury (without an accompanying ``but for'' injury finding), and one

vote finding neither material injury nor threat of injury. The

Department must therefore interpret whether section 736(b)(2) of the

Act is triggered by such votes.

In making this determination, the Department has been guided by

applicable judicial precedent. See MBL (USA) Corp. v. United States,

787 F. Supp. 202 (CIT 1992). According to the CIT's ruling in that

case, inherent in non-material injury votes (i.e., ``negative'' votes

and ``threat'' votes) ``is the realization that antidumping duties will

not be imposed, just as affirmative views can signify imposition of

such duties from the date of a preliminary less-than-fair-value

determination rather than from the date of a final decision on material

injury.'' 787 F. Supp. at 208.

Therefore, in accordance with MBL, the Department has determined

that section 736(b)(2) of the Act is applicable to this case.

Therefore, the Department will direct the Customs Service to assess,

upon further advice, antidumping duties on all unliquidated entries of

fresh Atlantic salmon from Chile entered, or withdrawn from warehouse,

for consumption on or after the date on which the ITC published its

final determination of threat of material injury in the Federal

Register, and to terminate the suspension of liquidation for entries of

fresh Atlantic salmon from Chile, entered, or withdrawn from warehouse,

prior to that date.

On or after the date of publication of this notice in the Federal

Register, the Customs Service will require, at the same time as

importers would normally deposit estimated duties on this merchandise,

a cash deposit equal to the corrected weighted-average ad valorem

dumping margins noted above.

This notice constitutes the antidumping duty order with respect to

fresh Atlantic salmon from Chile, pursuant to section 736(a) of the

Act. Interested parties may contact the Central Records Unit, at Room

B-099 of the Main Commerce Building, for an up-to-date list of

antidumping duty orders currently in effect.

This notice also serves as a reminder to parties subject to

administrative protective orders (APO) of their responsibility

concerning the return or

[[Page 40701]]

destruction of proprietary information disclosed under APO in

accordance with 19 CFR 353.34(d). Failure to comply with the

regulations and terms of an APO is subject to sanction.

This order is published pursuant to section 736(a) of the Act and

19 CFR 353.21.

Joseph A. Spetrini,

Acting Assistant Secretary for Import Administration.

[FR Doc. 98-20518 Filed 7-29-98; 8:45 am]

BILLING CODE 3510-DS-P