[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] ----------------------------------------------------------------------- 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