[Federal Register Volume 63, Number 146 (Thursday, July 30, 1998)]
[Notices]
[Pages 40699-40701]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-20518]
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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
