Notice of Final Results of Antidumping Duty Administrative Review, and Final Determination to Revoke the Order In Part: Individually Quick Frozen Red Raspberries from Chile

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On August 7, 2007, the Department of Commerce published the preliminary results of the administrative review of the antidumping duty order on certain individually quick frozen red raspberries from Chile. The review covers seven producers/exporters of subject merchandise. We gave interested parties an opportunity to comment on the preliminary results. We have noted the changes made since the preliminary results below in the “Changes Since the Preliminary Results” section. The final results are listed below in the “Final Results of Review” section.

EFFECTIVE DATE:

December 11, 2007.

FOR FURTHER INFORMATION CONTACT:

David Layton or Nancy Decker, AD/CVD Operations, Office 1, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington DC 20230; telephone (202) 482-0371 and (202) 482-0196, respectively.

SUPPLEMENTARY INFORMATION:

Background

On August 7, 2007, the Department of Commerce (“the Department”) published the Notice of Preliminary Results of Antidumping Duty Administrative Review, Notice of Partial Rescission of Antidumping Duty Administrative Review, Notice of Intent to Revoke in Part: Certain Individually Quick Frozen Red Raspberries from Chile, 72 FR 44112 (August 7, 2007) (Preliminary Results) in the Federal Register.

On August 30, 2007, September 6, 2007, September 10, 2007 and September 12, 2007, we requested that Arlavan S.A. (Arlavan) and certain suppliers of Arlavan and Valles Andinos S.A. (Valles Andinos) respond to supplemental questionnaires regarding their respective costs of production. We received timely responses to these requests for cost information from all of the parties.

On August 23, 2007, we extended the deadline for parties to submit comments on the preliminary results until October 15, 2007, and we extended the deadline for parties to submit rebuttal comments until October 22, 2007. See Memorandum from David Layton to File, “Fourth Administrative Review of Certain Individually Quick Frozen Red Raspberries from Chile, Briefing and Hearing Schedules,” dated August 23, 2007. No comments were received. For Alimentos Naturales Vitafoods S.A. (Vitafoods), Fruticola Olmue S.A. (Olmue) and Sociedad Agroindustrial Valle Frio Ltda. (Valle Frio),¹ and Vital Berry Marketing S.A. (VBM),² we made no changes to the calculations from the preliminary results. For Arlavan and Valles Andinos, we have revised our calculation of constructed value (“CV”), based on additional cost information we obtained after the preliminary results. These changes are discussed in the “Changes Since the Preliminary Results” section below.

Scope of the Order

The products covered by this order are imports of IQF whole or broken red raspberries from Chile, with or without the addition of sugar or syrup, regardless of variety, grade, size or horticulture method (e.g., organic or not), the size of the container in which packed, or the method of packing. The scope of the order excludes fresh red raspberries and block frozen red raspberries (i.e., puree, straight pack, juice stock, and juice concentrate).

The merchandise subject to this order is currently classifiable under subheading 0811.20.2020 of the Harmonized Tariff Schedule of the United States (“HTSUS”). Although the HTSUS subheading is provided for convenience and customs purposes, the written description of the merchandise under the order is dispositive.

Period of Review

The period of review (“POR”) is July 1, 2005, through June 30, 2006.

Determination to Revoke In Part

The Department may revoke, in whole or part an antidumping order upon completion of a review under section 751 of the Tariff Act of 1930 (as amended) (“the Act”). While Congress has not specified the procedures that the Department must follow in revoking an order, the Department has developed a procedure for revocation that is described in 19 CFR 351.222(b). In determining whether to revoke an antidumping duty order in part, the Secretary will consider: (A) whether one or more exporters or producers covered by the order have sold the merchandise at not less than normal value (“NV”) for a period of at least three consecutive years; (B) whether, for any exporter or producer that the Secretary previously has determined to have sold the subject merchandise at less than NV, the exporter or producer agrees in writing to its immediate reinstatement in the order, as long as any exporter or producer is subject to the order, if the Secretary concludes that the exporter or producer, subsequent to the revocation, sold the subject merchandise at less than NV; and (C) whether the continued application of the antidumping duty order is otherwise necessary to offset dumping. See 19 CFR 351.222(b)(2)(i)(A)-(C).

The Department's regulations require, inter alia, that a company requesting revocation submit the following: (1) a certification that the company has sold the subject merchandise at not less than NV in the current review period and that the company will not sell at less than NV in the future; (2) a certification that the company sold the subject merchandise in commercial quantities in each of the three years forming the basis of the receipt of such a request; and (3) an agreement that the order will be reinstated if the company is subsequently found to be selling the subject merchandise at less than fair value. See 19 CFR 351.222(e)(1)(i)-(iii). See, e.g., Notice of Final Results of Antidumping Duty Administrative Review and Determination Not to Revoke the Antidumping Duty Order: Brass Sheet and Strip From the Netherlands, 65 FR 742, 743 (January 6, 2000).

On July 31, 2006, pursuant to 19 CFR 351.222(e)(1), Olmue and VBM requested revocation of the antidumping duty order as it pertains to them. With their requests for revocation, Olmue and VBM provided each of the certifications required under 19 CFR 351.222(e). Consistent with the preliminary results, we continue to find that the requests from Olmue and VBM meet all of the criteria under 19 CFR 351.222(e)(1).

As explained in the preliminary results and affirmed in these final results, our calculations show that Olmue and VBM sold IQF red raspberries at not less than NV during the current review period. In addition, Olmue and VBM sold IQF red raspberries at not less than NV during the 2004-2005 and 2003-2004 review periods (i.e., the dumping margins for Olmue and VBM were zero or de minimis). See Individually Quick Frozen Red Raspberries from Chile: Notice of Final Results of Antidumping Duty Administrative Review, 72 FR 6524 (February 12, 2007), covering the period July 1, 2004, through June 30, 2005; see also Individually Quick Frozen Red Raspberries from Chile: Notice of Final Results of Antidumping Duty Administrative Review, 70 FR 72788 (Dec. 7, 2005), covering the period July 1, 2003, through June 30, 2004.

Moreover, based on our examination of the sales data submitted by Olmue and VBM, we find that Olmue and VBM sold the subject merchandise in the United States in commercial quantities in each of the consecutive years cited by Olmue and VBM to support their requests for revocation. See Memorandum to Stephen J. Claeys, Deputy Assistant Secretary, “Preliminary Determination to Revoke in Part the Antidumping Duty Order on Individually Quick Frozen Red Raspberries from Chile for Fruticola Olmué S.A. and Vital Berry Marketing S.A.,” dated July 31, 2007, which is on file in room B-099 of the CRU.

Finally, we find that application of the antidumping order to Olmue and VBM is no longer warranted for the following reasons: (1) as noted above, the companies had zero or de minimis margins for a period of at least three consecutive years; (2) the companies have agreed to immediate reinstatement of the order if the Department finds that they have resumed making sales at less than NV; and (3) the continued application of the order is not otherwise necessary to offset dumping.

Therefore, we determine that Olmue and VBM qualify for revocation of the order on IQF red raspberries pursuant to 19 CFR 351.222(b)(2) and that the order, with respect to subject merchandise exported by Olmue and VBM, should be revoked. In accordance with 19 CFR 351.222(f)(3), we are terminating the suspension of liquidation for subject merchandise exported by Olmue and VBM that was entered, or withdrawn from warehouse, for consumption on or after July 1, 2006, and will instruct U.S. Customs and Border Protection (“CBP”) to refund with interest any cash deposits for such entries.

Use of Facts Otherwise Available

As discussed in the preliminary results, we continue to find that use of facts otherwise available with an adverse inference is appropriate for Antillal, a supplier of Arlavan. See Section 776 of the Act. Antillal is an interested party because it is a producer of the subject merchandise. See section 771(9)(A) and section 771(28) of the Act. Antillal did not respond to the Department's questionnaire. Thus, Antillal withheld information necessary to the calculation of a dumping margin and failed to act to the best of its ability. No party commented on our application of adverse facts available to Antillal in the preliminary results.

Also as discussed in the Preliminary Results, the Department did not receive constructed value information for Valles Andinos' organic raspberry products. Because this information is necessary to the calculation of Valles Andinos' CV, the Department must rely on facts otherwise available under section 776 of the Act. The Department continues to find that this information is unavailable because the suppliers from which we requested constructed value information were not among the suppliers that provided Valles Andinos with organic raspberry products during the POR. Thus, the unavailability of this information is not the result of Valles Andinos' lack of cooperation or the result of any failure to cooperate on the part of any producer of subject merchandise, and adverse inferences under section 776(b) of the Act are not warranted.

Changes Since the Preliminary Results

Based on additional information obtained after the preliminary results for Arlavan and Arlavan's and Valles Andinos' suppliers, we have made adjustments to the calculation methodologies for the final dumping margins in this proceeding. The company-specific changes are discussed below.

Arlavan

We adjusted direct material cost and variable overhead for Arlavan to account for certain production quantity changes. As a result, we recalculated per-unit general and administrative (G&A) and interest expenses (INTEX) for Arlavan. For Arlavan's cost respondent, San Antonio, we adjusted fixed overhead by employing data from the POR, and we adjusted G&A, and INTEX for San Antonio by employing data from 2005, consistent with our cost calculations for other respondents.

As we did in the preliminary results, we calculated a weighted-average CV for Arlavan using: 1) the COP of Arlavan's one responding supplier (San Antonio) for purchases from San Antonio; 2) Arlavan's own reported COP, as adjusted; and 3) the weighted average of the two highest COPs of all respondents' reported COP information as AFA for Antillal's COP. To the extent any of our adjustments to COP data in these final results affect the highest COPs, we have adjusted the AFA value for Antillal's COP. We then recalculated the overall average CV for Arlavan based on the above changes. For further discussion, see Memorandum to the File, “Final Results Calculation Memorandum for Arlavan S.A.,” dated December 4, 2007 (Arlavan Final Calculation Memorandum), which is on file in the CRU.

Valles Andinos

We adjusted direct material costs, G&A, and interest for Valles Andinos' cost respondent, Punsin, to account for certain corrections to the calculations. We also adjusted direct material costs for Valles Andinos' other cost respondent, Peheunche, to exclude a raw material price related to non-subject merchandise. As a result, we recalculated Pehuenche's per unit G&A and INTEX. We recalculated the overall average CV for Valles Andinos based on the above changes. For further discussion, see Memorandum to the File, “Final Results Calculation Memorandum for Valles Andinos, S.A.” dated December 4, 2007 (Valles Andinos Final Calculation Memorandum), which is on file in the CRU.

Results of the COP Test

Pursuant to section 773(b)(2)(C)(i) of the Act, where less than 20 percent of sales of a given product were at prices less than the COP, we did not disregard any below-cost sales of that product because we determined that the below-cost sales were not made in “substantial quantities.” Where 20 percent or more of a respondent's sales of a given product during the POR were at prices less than the COP, we determined such sales to have been made in “substantial quantities.” See section 773(b)(2)(C) of the Act. These sales were made within an extended period of time in accordance with section 773(b)(2)(B) of the Act, because we examined below-cost sales occurring during the entire POR. Because we compared prices to POR-average costs, we also determined that these sales were not made at prices which would permit recovery of all costs within a reasonable period of time, in accordance with section 773(b)(2)(D) of the Act.

For Olmue, we found that, for certain products, more than 20 percent of comparison market sales were at prices less than the COP and the below-cost sales were made within an extended period of time in substantial quantities. In addition, these sales were made at prices that did not provide for the recovery of costs within a reasonable period of time. We therefore excluded these sales and used the remaining sales, if any, as the basis for determining NV, in accordance with section 773(b)(1) of the Act.

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, 2005, through June 30, 2006:

Assessment Rates

The Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries. Pursuant to 19 CFR 351.212(b)(1), for all sales made by respondents for which they have reported the importer of record and the entered value of the U.S. sales, we have calculated importer-specific assessment rates based on the ratio of the total amount of antidumping duties calculated for the examined sales to the total entered value of those sales.

Where the respondents did not report the entered value for U.S. sales, we have calculated importer-specific assessment rates for the merchandise in question by aggregating the dumping margins calculated for all U.S. sales to each importer and dividing this amount by the total quantity of those sales. To determine whether the duty assessment rates were de minimis, in accordance with the requirement set forth in 19 CFR 351.106(c)(2), we calculated importer-specific ad valorem rates based on the estimated entered value. Where the assessment rate is above de minimis, we will instruct CBP to assess duties on all entries of subject merchandise by that importer. Pursuant to 19 CFR 351.106(c), we will instruct CBP to liquidate without regard to antidumping duties any entries for which the assessment rate is de minimis (i.e., less than 0.50 percent).

The Department clarified its “automatic assessment” regulation on May 6, 2003. See Antidumping and Countervailing Duty Proceedings: Assessment of Antidumping Duties, 68 FR 23954 (May 6, 2003). This clarification will apply to entries of subject merchandise during the POR produced by the respondent for which it did not know its merchandise was destined for the United States. In such instances, we will instruct CBP to liquidate unreviewed entries at the all-others rate of 6.33 percent³ if there is no rate for the intermediate company(ies) involved in the transaction. For a full discussion of this clarification, see Antidumping and Countervailing Duty Proceedings: Assessment of Antidumping Duties, 68 FR 23954 (May 6, 2003).

The Department intends to issue assessment instructions to CBP 15 days after the date of publication of these final results of review.

Cash Deposit Requirements

On July 20, 2007, the Department published a Federal Register notice that, inter alia, revoked this order, effective July 9, 2007. See IQF Red Raspberries from Chile: Final Results of Sunset Review and Revocation of Order, 72 FR 39793 (July 20, 2007). As a result, CBP is no longer suspending liquidation for entries of subject merchandise occurring after the revocation. Therefore, there is no need to issue new cash deposit instructions pursuant to the final results of this administrative review.

Notification to Importers

This notice also serves as a reminder to importers of their responsibility under 19 CFR 351.402(f)(2) 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 the subsequent assessment of double antidumping duties.

Notification Regarding Administrative Protective Orders

This notice also serves as a reminder to parties subject to administrative protective orders (“APOs”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. 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 terms of an APO is a violation which is subject to sanction.

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