03-3405. Notice of Final Results of Antidumping Duty Administrative Review, Final Determination to Revoke the Order in Part, and Partial Rescission of Antidumping Duty Administrative Review: Fresh Atlantic Salmon From Chile

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On August 7, 2002, the Department of Commerce (the Department) published the preliminary results of its third administrative review of the antidumping duty order on fresh Atlantic salmon from Chile. The review covers sixteen producers/exporters of the subject merchandise. The period of review (POR) is July 1, 2000, through June 30, 2001. Based on our analysis of comments received, these final results differ from the preliminary results. The final results are listed below in the Final Results of Review section.

EFFECTIVE DATE:

February 11, 2003.

FOR FURTHER INFORMATION CONTACT:

Vicki Schepker or Constance Handley, at [phone] or [phone], respectively; AD/CVD Enforcement, Office V, Group II, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street & Constitution Avenue, NW, Washington, DC 20230.

SUPPLEMENTARY INFORMATION:

Background

On August 7, 2002, the Department published in the Federal Register the preliminary results of the third administrative review of the antidumping duty order on fresh Atlantic salmon from Chile. See Notice of Preliminary Results of Antidumping Duty Administrative Review, Preliminary Determination to Revoke the Order in Part, and Partial Rescission of Antidumping Duty Administrative Review: Fresh Atlantic Salmon From Chile, 67 FR 51182 (August 7, 2002) (Preliminary Results).

We invited parties to comment on the Preliminary Results. On October 3, 2002, we received case briefs from respondents Cultivadora de Salmones Linao Ltda. and Salmones Tecmar S.A. (collectively, Linao and Tecmar)^[1] , Pesquera Eicosal Ltda., (Eicosal), Los Fiordos, Ltda. (Los Fiordos), Marine Harvest (Chile) S.A., (Marine Harvest), Salmones Mainstream S.A. (Mainstream), Salmones Pacifico Sur S.A. (Pacifico Sur), Pesca Chile S.A. (Pesca Chile), and L.R. Enterprises.^[2] On October 8, 2002, L.R. Enterprises filed an unsolicited, revised case brief with regard to Mainstream because its October 3 submission on Mainstream contained numerous inadvertent errors.

On October 10, 2002, we received rebuttal briefs from respondents Cultivos Marinos Chiloe, Ltda. (Cultivos Marinos), Eicosal, Linao and Tecmar, Mainstream, Marine Harvest, Pacifico Sur and L.R. Enterprises.

On October 15, 2002, the Department sent L.R. Enterprises a letter regarding its case brief on Mainstream, requiring the redaction of new factual information contained in the October 3 and 8 versions. On October 16, 2002, L.R. Enterprises submitted redacted versions of the October 3 and 8 versions of its case brief on Mainstream. At the hearing on October 17, 2002, the Department informed L.R. Enterprises that the versions submitted on October 16 still contained information that should have been redacted. The Department instructed L.R. Enterprises to re-submit its case brief on Mainstream with all of the appropriate information redacted by the close of business on October 18, 2002. L.R. Enterprises re-submitted the brief.

On October 22, 2002, Mainstream submitted a letter to the Department stating that the re-submitted, revised version filed by L.R. Enterprises on October 18 continued to contain new factual information that should have been redacted. Mainstream requested that, given that L.R. Enterprise's fourth attempt still contained new factual information, the Department reject as untimely filed L.R. Enterprise's October 18, 2002, submission. Mainstream also provided the Department with its own version of what the correctly redacted case brief should look like. On October 24, 2002, L.R. Enterprises filed a response to Mainstream's October 22, 2002, letter, in which it argued that its October 18 version was correctly redacted and that there was no longer any new factual information contained in the brief. L.R. Enterprises also included in its October 24 filing a revised version of the case brief, removing only the reference to new information contained in Exhibit 1. On October 25, 2002, the Department asked L.R. Enterprises to resubmit its case brief on Mainstream in compliance with the Department's specific redaction instructions contained within that letter. On October 28, 2002, L.R. Enterprises complied with the Department's request and submitted the revised version of its case brief on Mainstream.

Partial Rescission of the Antidumping Duty Administrative Review

Prior to the publication of the preliminary results in this review, respondent Salmones Unimarc S.A. (Salmones Unimarc) certified to the Department that it had not shipped subject merchandise to the United States during the POR. As described in the Preliminary Results, U.S. import statistics confirmed that the company had not shipped subject merchandise to the United States during the POR. Therefore, the Department preliminarily rescinded the review with respect to this company. No new information has come to the Department's attention in this regard since the publication of the preliminary results. Accordingly, we are rescinding the review with respect to Salmones Unimarc.

Scope of the Review

The product covered by this review is 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 review. 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 review is classifiable under item numbers 0302.12.0003 and 0304.10.4093, 0304.90.1009, 0304.90.1089, and 0304.90.9091 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise is dispositive.

Analysis of Comments Received

The issues raised in the case briefs by parties to this administrative review are addressed in the Issues and Decision Memorandum to Faryar Shirzad, Assistant Secretary for Import Administration, from Bernard T. Carreau, Deputy Assistant Secretary (Decision Memorandum), which is hereby adopted by this notice. A list of the issues addressed in the Decision Memorandum is appended to this notice. The Decision Memorandum is on file in Room B-099 of the main Commerce building, and can also be accessed directly on the Web at ia.ita.doc.gov. The paper copy and electronic version of the Decision Memorandum are identical in content.

Determination to Revoke Order in Part

In accordance with section 351.222(b)(2) of the Department's regulations, we have determined to revoke the antidumping duty order as to Cultivos Marinos, Mainstream, Marine Harvest and Pacifico Sur. These companies have sold subject merchandise in commercial quantities at prices not below their respective normal values for three consecutive annual reviews. Moreover, our analysis of market conditions and other factors does not indicate that the order is otherwise necessary to offset dumping with respect to these companies. See Revocation Recommendation in the Decision Memorandum.

We have also determined to not revoke the order as to Eicosal and Linao and Tecmar. The Stolt Sea Farm Ltda. acquisition of Eicosal and subsequent affiliation and collapsing issues between Eicosal and Ocean Horizons Chile S.A.^[3] lead the Department to conclude that continued imposition of the order is necessary to offset dumping by Eicosal. See Comment 8 of the Decision Memorandum. With regard to Linao and Tecmar, for the reasons outlined in a proprietary memo,^[4] the Department has determined that the order is otherwise necessary to offset dumping by Linao and Tecmar.

Final Results of Review

As a result of our review, we determine that the following weighted-average margins exist for the period of July 1, 2000, through June 30, 2001:

Exporter/Manufacturer	Weighted-Average Margin ­Percentage
Andes	0.16 (de minimis)
Cultivos Marinos	0.10 (de minimis)
Eicosal	0.44 (de minimis)
Friosur	0.18 (de minimis)
Invertec	0.00
Linao and Tecmar	0.29 (de minimis)
Los Fiordos	0.04 (de minimis)
Mainstream	0.05 (de minimis)
Marine Harvest	0.13 (de minimis)
Multiexport	0.00
Ocean Horizons	0.07 (de minimis)
Pacifico Sur	0.00
Patagonia	0.01 (de minimis)
Pesca Chile	0.11 (de minimis)
Robinson Crusoe	0.06 (de minimis)

Assessment

The Department will determine, and the Customs Service shall assess, antidumping duties on all appropriate entries. In accordance with 19 CFR 351.212(b)(1) (2002), we have calculated an exporter/importer (or customer)-specific assessment rate for merchandise subject to this review. We will direct the Customs Service to assess such rates against the entered customs values for the subject merchandise on each of the importer's/customer's entries during the review period. The Department will issue appropriate assessment instructions directly to the Customs Service within 15 days of publication of these final results of review.

Cash Deposits

Furthermore, the following deposit requirements will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of these final results of administrative review, as provided by section 751(a) of the Tariff Act of 1930, as amended (the Act): (1) for all exporters/manufacturers covered by this review, the cash deposit rate will be the rate listed above, except where the margin is zero or de minimis, no cash deposit will be required; (2) for merchandise exported by producers or exporters not covered in this review but covered in a previous segment of this proceeding, the cash deposit rate will continue to be the company-specific rate published in the most recent final results in which that producer or exporter participated; (3) if the exporter is not a firm covered in this review or in any previous segment of this proceeding, but the producer is, the cash deposit rate will be that established for the producer of the merchandise in these final results of review or in the most recent final results in which that producer participated; and (4) if neither the exporter nor the producer is a firm covered in this review or in any previous segment of this proceeding, the cash deposit rate will be 4.57 percent, the “All Others” rate established in the less-than-fair-value investigation. These deposit requirements shall remain in effect until publication of the final results of the next administrative review.

This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402 (f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred, and in the subsequent assessment of double antidumping duties.

This notice also is the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.

We are issuing and publishing these results and notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act.

Dated: February 3, 2003.

Faryar Shirzad,

Assistant Secretary for Import Administration.

APPENDIX

Comment 1: Regulatory requirements for revocation

Comment 2: European Commission's initiation of a dumping investigation of fresh and frozen Atlantic salmon from Chile

Comment 3: Accuracy and propriety of the Department's revocation analysis

Comment 4: Production capacity

Comment 5: The use of fourth review data in the final results of the third review

Comment 6: Whether Eicosal's post-POI shipments were made in commercial quantities

Comment 7: Eicosal's sales to the United States

Comment 8: Stolt Sea Farm Ltda.'s (Stolt) post-POR acquisition of Eicosal

Comment 9: Pacifico Sur's U.S. prices and profitability

Comment 10: Whether the Department should consider Marine Harvest eligible for revocation

Comment 11: Whether the Department should find that Linao and Tecmar are a “new entity” for the purposes of its revocation analysis

Comment 12: Whether the Department should have placed a revocation analysis for Linao and Tecmar on the record of this review

Comment 13: Whether the Department should revise the monetary correction adjustment and financial expense ratio for Eicosal

Comment 14: Marine Harvest's CEP profit calculation

Comment 15: Marine Harvest's feed costs

Comment 16: Ministerial error contained in Linao's and Tecmar's preliminary results margin calculation program

Comment 17: Linao's and Tecmar's cash deposit rate

Comment 18: Whether Department should correct data errors made by Los Fiordos for the final results

Footnotes

1.  Linao and Tecmar were collapsed in the third administrative review. See Preliminary Results at 51186.

2.  L.R. Enterprises is a domestic producer of subject merchandise with operations in Lubec, Maine.

3.  On July 3, 2001, Eicosal was fully acquired by Stolt, the parent company of Ocean Horizons.

4.  See Final Determination to Revoke in Part the Antidumping Duty Order on Fresh Atlantic Salmon from Chile for Marine Harvest and Not to Revoke for Linao and Tecmar memorandum to Bernard Carreau, Deputy Assistant Secretary, from Daniel O´ Brien and Salim Bhabhrawala, Case Analysts, dated February 3, 2003.