[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

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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