02-7956. Amended Final Determination of Sales at Less Than Fair Value: Greenhouse Tomatoes From Canada

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

ACTION:

Notice of amended final determination of sales at less than fair value.

EFFECTIVE DATE:

April 2, 2002.

SUMMARY:

On February 26, 2002, we published in the Federal Register our notice of final determination of sales at less than fair value. See Final Determination of Sales at Less Than Fair Value: Greenhouse Tomatoes From Canada, 67 FR 8781 (February 26, 2002). We are amending our final determination to correct ministerial errors discovered in relation to the antidumping duty margin calculations for BC Hot House Foods, Inc., J-D Marketing, Inc., Mastronardi Produce Ltd., and Red Zoo Marketing.

FOR FURTHER INFORMATION CONTACT:

Mark Ross or Minoo Hatten, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: [phone] or [phone], 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. In addition, unless otherwise indicated, all citations to the Department of Commerce's (the Department's) regulations refer to 19 CFR part 351 (April 2001).

Background

On February 26, 2002, we published in the Federal Register our final determination that greenhouse tomatoes from Canada are being, or are likely to be, sold in the United States at less than fair value (LTFV), as provided in section 735(a) of the Act. See Final Determination of Sales at Less Than Fair Value: Greenhouse Tomatoes From Canada, 67 FR 8781 (February 26, 2002) (Final Determination). On March 4, 2002, the Department received timely filed allegations of ministerial errors in the final determination with respect to J-D Marketing, Inc., and Mastronardi Produce Ltd. On March 5, 2002, another respondent, BC Hot House Foods, Inc., timely filed an allegation that the Department had made certain ministerial errors in the final determination. On March 5, 2002, the petitioners, Carolina Hydroponic Growers Inc., Eurofresh, HydroAge, Sunblest Management LLC, Sunblest Farms LLC, and Village Farms (referred to hereafter as “the petitioners”) also timely filed allegations that the Department made certain ministerial errors in its final determination. On March 6, 2002, however, the petitioners withdrew their allegations.

Scope of the Investigation

The merchandise subject to this investigation consists of all fresh or chilled tomatoes grown in greenhouses in Canada, e.g., common round tomatoes, cherry tomatoes, plum or pear tomatoes, and cluster or “on-the-vine” tomatoes. Specifically excluded from the scope of this investigation are all field-grown tomatoes.

The merchandise subject to this investigation may enter under item numbers 0702.00.2000, 0702.00.2010, 0702.00.2030, 0702.00.2035, 0702.00.2060, 0702.00.2065, 0702.00.2090, 0702.00.2095, 0702.00.4000, 0702.00.4030, 0702.00.4060, 0702.00.4090, 0702.00.6000, 0702.00.6010, 0702.00.6030, 0702.00.6035, 0702.00.6060, 0702.00.6065, 0702.00.6090, and 0702.00.6095 of the Harmonized Tariff Schedule of the United States (HTSUS). These subheadings may also cover products that are outside the scope of this investigation, i.e., field-grown tomatoes. Although the HTSUS subheadings are provided for convenience and customs purposes, our written description of the scope of this investigation is dispositive.

Ministerial-Error Allegations

BC Hot House Foods, Inc., alleges that the Department did not convert the freight expenses for shipments from the growers to the respondent from a per-kilogram basis to a per-pound basis and that the Department did not assign the appropriate cost of production to miniplum greenhouse tomatoes.

J-D Marketing, Inc., alleges that the Department used an outdated data file in its margin calculations and, in addition, did not recalculate U.S. credit expense properly.

Mastronardi Produce Ltd. alleges that the Department made the following errors: it did not include Amco Farms' cost-of-production data for beefsteak tomatoes in the calculation of a weighted-average cost for its beefsteak tomatoes; it omitted an offset adjustment for foreign-exchange gains in recalculating indirect selling expenses; it subtracted billing adjustments from the gross unit prices used to recalculate indirect selling expenses; it did not remove certain U.S. sales from the sales list that are of non-subject merchandise; and it treated certain indirect selling expenses and inventory carrying costs improperly for the calculation of the net constructed export price (CEP) and CEP profit.

On March 11, 2002, the petitioners commented on respondents' ministerial-error allegations. The petitioners assert that, because the Department can not know from information on the record that beefsteak tomatoes which Amco Farms supplied to Amco Produce were the ones that were in turn supplied to Mastronardi Produce Ltd., the Department's decision not to use the cost of production of Amco Farms' beefsteak tomatoes in calculating Mastronardi Produce Ltd.'s weighted-average costs was correct. The petitioners also made this comment with respect to Red Zoo Marketing, although the respondents did not raise the issue in their ministerial-error allegations.

No other party alleged that there were ministerial errors in the Final Determination or commented on ministerial-error allegations.

Ministerial Errors

The Department's regulations define a ministerial error as one involving “addition, subtraction, or other arithmetic function, clerical error resulting from inaccurate copying, duplication or the like, and any other similar type of unintentional error which the Secretary considers ministerial.” See 19 CFR 351.224(f). After reviewing the allegations we have determined, in accordance with 19 CFR 351.224, that the Final Determination includes ministerial errors.

We agree with BC Hot House Foods, Inc., that we did not convert the freight expenses for shipments from the growers to the respondent from a per-kilogram basis to a per-pound basis and that we did not assign the appropriate cost of production to miniplum greenhouse tomatoes. As discussed in the Amended Final Determination Analysis Memorandum from Mark Ross to the file, dated March 15, 2002, we have corrected these ministerial errors.

We agree with J-D Marketing, Inc., that we used an outdated data file in our margin calculations and, in addition, did not recalculate U.S. credit expense properly. As discussed in the Amended Final Determination Analysis Memorandum from Dmitry Vladimirov to the file, dated March 26, 2002, we have corrected these ministerial errors.

After re-evaluating the information on the record, we agree with Mastronardi Produce Ltd. that we should include Amco Farms' cost-of-production data for beefsteak tomatoes in the calculation of a weighted-average cost for its beefsteak tomatoes. Additionally, as a result of the petitioners' comments on the respondent's ministerial-error allegations, we also discovered that a similar ministerial error occurred in our calculations concerning Red Zoo Marketing. We should also have included Amco Farms' cost of production data for beefsteak tomatoes in the calculation of Red Zoo Marketing's weighted-average cost for beefsteak tomatoes.

We also agree with Mastronardi Produce Ltd. that the following corrections to our calculations are appropriate: (1) We should include the offset adjustment for foreign-exchange gains in recalculating indirect selling expenses; (2) we should not subtract billing adjustments from the gross unit prices used to recalculate indirect selling expenses; (3) we should remove certain U.S. sales from the sales list that are of non-subject merchandise.

We agree in part with Mastronardi Produce Ltd.'s allegation that we treated certain indirect selling expenses and inventory carrying costs improperly for the calculation of the net CEP and CEP profit. Specifically, in calculating the CEP profit we did not treat the inventory carrying costs properly because we did not include certain inventory carrying costs associated with U.S. economic activity in the calculation. We have corrected this error.

We disagree, however, with Mastronardi Produce Ltd. that we did not treat certain indirect selling expenses properly in the calculation of the net CEP and CEP profit. See the Amended Final Determination Analysis Memorandum from Dmitry Vladimirov to the file, dated March 26, 2002, which includes an explanation of how we have corrected the error in the calculation of CEP profit.

We disagree with the petitioners that, because we do not know with certainty that the beefsteak tomatoes produced by Amco Farms were the actual tomatoes sold to Mastronardi Produce Ltd. and Red Zoo Marketing, we cannot use Amco Farms' beefsteak tomato cost data. To the contrary, we selected the cost respondents which we found to be representative of all tomatoes sold by the exporters of greenhouse tomatoes from Canada. Therefore, it is not necessary to link the actual tomatoes produced by Amco Farms to Mastronardi Produce Ltd. or Red Zoo Marketing.

In accordance with 19 CFR 351.224(e), we are amending the final determination of the antidumping duty investigation of greenhouse tomatoes from Canada. As a result of the correction of ministerial errors for certain respondents, we determine that the following percentage weighted-average amended final margins exist for the period January 1, 2000, through December 31, 2000:

Exporter/Grower	Final determination	Amended final determination
BC Hot House Foods, Inc.	18.21	18.04
J-D Marketing, Inc.	1.53	0.83
Mastronardi Produce Ltd.	14.89	0.52
Red Zoo Marketing (a.k.a. Produce Distributors, Inc.)	1.86	1.85
All Others	16.22	16.53

Pursuant to section 735(c)(5)(A) of the Act, we have excluded from the calculation of the all-others rate margins which are zero, de mimimis, or determined entirely on facts available. Because we calculated de minimis margins for J-D Marketing, Inc., Mastronardi Produce Ltd., and Red Zoo Marketing (a.k.a. Produce Distributors, Inc.), we have calculated the all-others rate on the basis of the margins applicable to BC Hot House Foods, Inc., and Veg Gro Sales, Inc.

Continuation of Suspension of Liquidation

In accordance with section 735(c)(1)(B) of the Act, we are directing the Customs Service to continue to suspend liquidation of all imports of subject merchandise except for exports by J-D Marketing, Inc. (and J-D Marketing, Inc.”s affiliate, Special Edition Marketing), Mastronardi Produce Ltd., and Red Zoo Marketing (a.k.a. Produce Distributors, Inc.), that are entered, or withdrawn from warehouse, for consumption on or after October 5, 2001, the date of publication of the Preliminary Determination in the Federal Register. For BC Hot House Foods, Inc., and the companies subject to the all-others rate, we will instruct the Customs Service to continue to require a cash deposit or the posting of a bond equal to the weighted-average amount by which the normal value exceeds the export price or CEP, as indicated in the chart above, effective the date of publication of this amended final determination. For Veg Gro Sales, Inc., for which we are not amending the Final Determination, we will instruct the Customs Service to continue to require a cash deposit or the posting of a bond equal to the weighted-average amount by which the normal value exceeds the export price or CEP, as indicated in the Final Determination dated February 26, 2002.

Because J-D Marketing, Inc. (and its affiliate, Special Edition Marketing), Mastronardi Produce Ltd., and Red Zoo Marketing are non-producing exporters, in accordance with 19 CFR 351.204(e)(3), we are limiting the exclusion from these suspension-of-liquidation instructions to entries only of subject merchandise exported by these companies that is produced or supplied by the companies that supplied these respondents (and the affiliate identified above) during the period of investigation (POI). Any entries of subject merchandise exported by these companies which is not produced or supplied by a company that supplied these companies during the POI will be subject to the all-others rate.

For Mastronardi Produce Ltd., because its estimated weighted-average amended final dumping margin is de minimis, we are directing Customs to terminate suspension of liquidation of entries of merchandise exported by Mastronardi Produce Ltd. that were produced or supplied by the companies that supplied this company during the POI and refund all bonds and cash deposits posted on such subject merchandise. Because we never required suspension of liquidation or the posting of cash deposits or bonds for entries of merchandise from J-D Marketing, Inc., no such step is necessary. For Red Zoo Marketing, as indicated in the Final Determination, 67 FR at 8785, because its estimated weighted-average final dumping margin was de minimis, we directed Customs to terminate suspension of liquidation of entries of merchandise from Red Zoo Marketing that were produced by the companies that supplied Red Zoo Marketing during the POI and refund all bonds and cash deposits posted on such subject merchandise exported by Red Zoo Marketing.

These suspension-of-liquidation instructions will remain in effect until further notice.

International Trade Commission Notification

In accordance with section 735(d) of the Act, we have notified the International Trade Commission of our amended final determination.

This determination is issued and published in accordance with section 735(d) and 777(i)(1) of the Act.

Dated: March 27, 2002.

Faryar Shirzad,

Assistant Secretary for Import Administration.