[Federal Register Volume 61, Number 137 (Tuesday, July 16, 1996)]
[Notices]
[Pages 37044-37047]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18054]
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DEPARTMENT OF COMMERCE
[A-331-602]
Certain Fresh Cut Flowers From Ecuador; Final Results of
Antidumping Duty Administrative Review
AGENCY: International Trade Administration, Import Administration,
Department of Commerce.
ACTION: Final Results of Antidumping Duty Administrative Review.
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SUMMARY: On August 2, 1995, the Department of Commerce published the
preliminary results of its administrative review of the antidumping
duty order on certain fresh cut flowers from Ecuador. The review covers
12 producers and/or exporters of this merchandise to the United States
and the period March 1, 1993 through February 28, 1994.
We gave interested parties an opportunity to comment on the
preliminary results. Based on our analysis of the comments received and
the correction of certain clerical errors, we have made certain changes
for the final results. The review indicates the existence of dumping
margins for certain firms during the review period. Therefore, we will
instruct U.S. Customs to assess antidumping duties equal to the
difference between the United States price (USP) and the foreign market
value (FMV).
EFFECTIVE DATE: July 16, 1996.
FOR FURTHER INFORMATION CONTACT: Thomas E. Schauer or Richard
Rimlinger, Office of Antidumping Compliance, International Trade
Administration, U.S. Department of Commerce, Washington, DC 20230;
telephone: (202) 482-4852/4477.
SUPPLEMENTARY INFORMATION:
Background
On March 18, 1987, the Department of Commerce (the Department)
published in the Federal Register (52 FR 8494) the antidumping duty
order on certain fresh cut flowers from Ecuador. On March 4, 1994, the
Department published a notice of ``Opportunity to Request
Administrative Review'' with respect to the period March 1, 1993
through February 28, 1994 (59 FR 14608). The Department received a
timely request for review from the petitioner, the Floral Trade
Council, on March 31, 1994, in accordance with 19 CFR 353.22(a). On
August 2, 1995, we published the preliminary results of the
administrative review (60 FR 39358). Unless otherwise indicated, all
citations to the statute and to the Department's regulations are
references to the provisions as they existed on December 31, 1994.
Two respondents have asked that we correct clerical errors
contained in their responses. We have had a long-standing practice of
correcting a respondent's clerical errors after the preliminary results
only if we can assess from information already on the record that an
error has been made, that the error is obvious from the record, and
that the correction is accurate. See Industrial Belts and Components
and Parts Thereof, Whether Cured or Uncured, From Italy: Final Results
of Antidumping Duty Administrative Review, 57 FR 8295, 8297 (March 9,
1992). In light of a recent decision of the United States Court of
Appeals for the Federal Circuit (CAFC), we have reevaluated our policy
for correcting clerical errors of respondents. See NTN Bearing Corp. v.
United States, Slip Op. 94-1186 (Fed. Cir. 1995) (NTN).
In NTN, the CAFC ruled that the Department had abused its
discretion by refusing to correct certain clerical errors, which the
respondent brought to the Department's attention after the preliminary
results of review. Specifically, the CAFC found that the Department's
application of its test for determining whether to correct clerical
errors in NTN was unreasonable for the following reasons: 1) the
requirement that the record disclose the error essentially precludes
corrections of clerical errors made by a respondent; 2) draconian
penalties are inappropriate for clerical errors because clerical errors
are by their nature not errors in judgment but merely inadvertencies;
3) in NTN's case, a straightforward mathematical adjustment was all
that was required, so correction of NTN's errors would neither have
required beginning anew nor have delayed issuance of the final results
of review.
As a result of the NTN decision, we are modifying our policy
regarding the correction of alleged clerical errors. We will accept
corrections of clerical errors under the following conditions: (1) the
error in question must be demonstrated to be a clerical error, not a
methodological error, an error in judgment, or a substantive error; (2)
the Department must be satisfied that the corrective documentation
provided in
[[Page 37045]]
support of the clerical error allegation is reliable; (3) the
respondent must have availed itself of the earliest reasonable
opportunity to correct the error; (4) the clerical error allegation,
and any corrective documentation, must be submitted to the Department
no later than the due date for the respondent's administrative case
brief; (5) the clerical error must not entail a substantial revision of
the response; and (6) the respondent's corrective documentation must
not contradict information previously determined to be accurate at
verification. In the Analysis of Comments Received section of this
notice, we have evaluated company-specific situations using the above
criteria.
Scope of the Review
Imports covered by the review are shipments of certain fresh cut
flowers from Ecuador (standard carnations, standard chrysanthemums, and
pompom chrysanthemums). This merchandise is classifiable under
Harmonized Tariff Schedule (HTS) items 0603.10.30.00, 0603.10.70.10,
0603.10.70.20, and 0603.10.70.30. The HTS item numbers are provided for
convenience and Customs purposes. The written description remains
dispositive.
The review covers Flores La Antonia, Flores del Quinche S.A.,
Florisol Cia Ltda., Flores de Ibarra, Flores de Puewmbo, Flores del
Ecuador, Flores Pichincha, Florestrade, Guaisa S.A., Inlandes S.A.,
Mundiflor, and Velvet Flores Cia S.A., which are producers and/or
exporters of certain fresh cut flowers from Ecuador to the United
States and the period March 1, 1993 through February 28, 1994.
Best Information Available
Because certain companies did not provide a response to our request
for information, we have determined that the use of best information
otherwise available (BIA) is appropriate for these firms in accordance
with section 776(c) of the Tariff Act of 1930, as amended (the Tariff
Act). Our regulations provide that we may take into account whether a
party refuses to provide information in determining what rate to use as
BIA (19 CFR 353.37(b) (1994)). Generally, whenever a company refuses to
cooperate with us or otherwise significantly impedes the proceeding, we
use as adverse BIA the highest rate for any company for the same class
or kind of merchandise from this or any other segment of the
proceeding. When a company substantially cooperates with our requests
for information, but fails to provide all the information requested in
a timely manner or in the form requested, we use as cooperative BIA the
higher of (1) the highest rate (including the ``all others'' rate) ever
applicable to the firm for the same class or kind of merchandise from
the same country from either the less-than-fair-value (LTFV)
investigation or a prior administrative review; or (2) the highest
calculated rate in this review for any firm for the same class or kind
of merchandise from the same country. See Antifriction Bearings (Other
Than Tapered Roller Bearings) and Parts Thereof From the Federal
Republic of Germany, et al.; Final Results of Antidumping Duty
Administrative Review, 57 FR 28360, 28379-80 (July 24, 1992); see also
Allied-Signal Aerospace Co. v. United States, 996 F.2d 1185 (Fed. Cir.
1993).
For these final results we have applied a cooperative BIA rate to
sales made by Flores de Ibarra, Flores de Puewmbo, Flores del Ecuador,
Flores Pichincha, Florestrade, and Mundiflor. These firms are no longer
in business, and we have determined, in accordance with the standards
enumerated in Certain Fresh Cut Flowers From Colombia; Final Results of
Antidumping Duty Administrative Review, and Notice of Revocation of
Order (in Part), 59 FR 15159 (March 31, 1994) (Colombian Flowers), that
they are incapable of responding to the Department's questionnaire. In
Colombian Flowers, the Department treated bankrupt, or otherwise out-
of-business, firms as cooperative provided that they explained their
situation to the Department. In this case, the firms mentioned above
submitted certifications that they are no longer in business and thus
could not respond.
Therefore, in accordance with Colombian Flowers, we find these
firms to be cooperative.
In this proceeding, the highest rate ever applicable to all of the
firms to which we are applying second-tier BIA is the ``all others''
rate from the less-than-fair-value investigation. None of the rates
calculated for this review exceeded the ``all others'' rate. Therefore,
we have applied the ``all others'' rate, which is 5.89 percent, to
Flores de Ibarra, Flores de Puewmbo, Flores del Ecuador, Flores
Pichincha, Florestrade, and Mundiflor.
Analysis of Comments Received
We gave interested parties an opportunity to comment on the
preliminary results. At the request of counsel for Expoflores, an
Ecuadorian trade association representing Ecuadorian flower producers
including the respondents in this review, we held a hearing on
September 26, 1995. We received case and rebuttal briefs from the
Floral Trade Council (FTC), petitioner in this proceeding, and
Expoflores, on behalf of respondents in this proceeding.
Issues Raised by the FTC
Comment 1: The FTC argues that the Department should deduct
commissions paid to related consignees where they are at arm's length
and directly related to sales, and that both commissions and indirect
selling expenses should be deducted from ESP regardless of the
relationship of the consignee. The FTC contends that where the statute
(section 772(e)(1)) and the Department's regulations (19 CFR 353.41)
direct the Department to deduct commissions from ESP, no distinction is
made for commissions paid to related or unrelated consignees, nor is
there any language directing the Department to deduct either
commissions or indirect selling expenses, but not both. The FTC also
argues that not deducting related party commissions is inconsistent
with the Court of International Trade's (CIT) finding in Timken Co. v.
United States, 630 F. Supp. 1327, 1341 (1986). The FTC further argues
that, even assuming that the statute at section 772(e)(1) does not
direct the Department to deduct commissions paid to related parties,
such commissions should be deducted as a circumstance-of-sale
adjustment whenever such commissions are at arm's length and directly
related to sales. Finally, the FTC argues that commissions paid to
related parties in the U.S. market are likely to be understated rather
than overstated, and that the statute requires that, when commissions
are not at arm's length, the Department is to deduct any commissions
and remaining general expenses.
Expoflores claims that this issue is not relevant because none of
the companies under review have related importers.
Department's Position: We agree with Expoflores. None of the
companies for which we calculated margins have related importers.
Therefore, this issue does not apply in this case. As for the FTC's
argument that we should deduct both commissions and indirect selling
expenses regardless of the relationship between the exporter and the
consignee, we note that for the preliminary and these final results of
review we deducted both commissions paid to unrelated consignees and
indirect selling expenses incurred in the home market on U.S. sales.
Comment 2: The FTC claims that the Department did not specifically
describe its treatment of FONIN export taxes in
[[Page 37046]]
the preliminary results of review, and asks the Department to ensure
that it deducts these taxes correctly from U.S. price in the final
results of review.
Department's Position: We deducted FONIN export taxes from USP, in
accordance with section 772(d)(2)(B) of the Tariff Act.
Issues Raised by Respondents
Comment 3: Expoflores claims that Flores La Antonia (Antonia) made
several obvious clerical errors in its questionnaire response, and that
the Department should correct these errors. The clerical errors alleged
by Expoflores are (1) the quantity of pompons shipped to a certain
customer in a certain month is dramatically overstated; (2) box charges
were inadvertantly not reported; (3) domestic inland freight expense is
overstated in one month; (4) the sales values of certain flowers for a
few months for one importer were shifted by one month; and (5) the
quantity of subject merchandise shipped to a certain customer in a
certain month is understated. Expoflores argues that these errors are
of the sort normally found and corrected at verification, but, because
the Department chose not to verify Antonia, these errors were not
discovered until after issuance of the preliminary results. Expoflores
asks that, in the interest of fairness and accuracy, the Department
correct these errors so as not to unduly penalize Antonia for not
having undergone verification. Expoflores claims that the accuracy of
the corrections submitted on behalf of Antonia is clear from the
administrative record. Expoflores further argues that the corrections
should not be considered untimely on the grounds that they cannot be
verified, because it was the Department's decision not to verify
Antonia. Finally, Expoflores argues that because the corrections refer
to original timely submitted data provided in Antonia's original
response to the Department's questionnaire, they do not constitute new
information.
The FTC contends that the Department should not make these
corrections as submitted by Antonia, because these errors were not
obvious from the record and could not have been identified by the
Department without additional information. The FTC asserts that the
fact that neither the Department nor Antonia identified the errors
prior to issuance of the preliminary results is compelling evidence
that the errors were not obvious. In addition, the FTC contends that
the Department should reject the information Antonia submitted in its
case brief to support its argument because it contained untimely new
information.
The FTC also argues that Antonia's claim that these errors are of
the sort normally found at verification has no relevance here. Because
the Department did not conduct verification and did not find the errors
in preparing the preliminary results, the FTC argues that the burden is
on Antonia to ensure that the data submitted is correct. The FTC argues
that the purpose of verification is not to discover errors so that
corrections can be made, but rather to determine the accuracy of
submitted data. Furthermore, the FTC states that it is not clear
whether there are any other unidentified reporting errors in the
response. The FTC further argues that the Department has no way of
confirming the accuracy of the remaining portions of Antonia's response
without verification and should consider rejecting the response
entirely and assigning a margin based on best information available.
Department's Position: Because we received Antonia's request that
we correct its response after publication of our preliminary results
and the alleged errors were not apparent from the record, we have
applied the six criteria explained in the Background section of this
notice. First, we examined the errors, and have determined that they
are clerical, and not methodological, in nature. Second, respondent
submitted, with its case brief, grower's reports, as well as cites to
its original response, that substantiated its claims with regard to
these clerical errors. Third, no note that these errors in the original
submission existed was made by any party prior to respondent's case
brief. Fourth, the clerical error allegation was not made later than
the due date for respondent's case brief. Fifth, we determine that,
because each of the errors affected one or a few figures for individual
line items for the POR, correction of these errors does not entail a
substantial revision of the response. Finally, we had not previously
verified the information submitted. Thus, we find that Antonia met all
of the criteria for each of the errors. Therefore, we have accepted
Antonia's corrections as clerical in nature and have made these changes
for the final results.
Comment 4: Expoflores argues that the interest rate that the
Department used in calculating interest expense for Flores del Quinche
(Quinche) is incorrect. Expoflores claims that Quinche inadvertantly
entered the wrong value in the spreadsheet, but noted this mistake, and
reported the correct interest rate in its narrative response.
Expoflores asks that the Department correct this error for the final
results.
The FTC contends that because the record is inconsistent with
respect to the correct interest rate, the Department should select the
higher rate as best information available.
Department's Position: Since Quinche's request that we correct its
response was received after publication of our preliminary results, we
have applied the six criteria from our new policy which we explained in
the Background section of this notice. We find that Quinche met all of
the criteria, with the substantiating evidence having been on the
record prior to the preliminary results. Therefore, we have made this
change for the final results.
Final Results of the Review
As a result of our review, we determine that the following margins
exist for the period March 1, 1993 through February 28, 1994:
------------------------------------------------------------------------
Margin
(percent)
------------------------------------------------------------------------
Manufacturer/Exporter:
Flores la Antonia.......................................... 0.51
Flores del Quinche S.A..................................... 1.17
Florisol Cia Ltda.......................................... 0.06
Flores de Ibarra........................................... 5.89
Flores de Puewmbo.......................................... 5.89
Flores del Ecuador......................................... 5.89
Flores Pichincha........................................... 5.89
Florestrade................................................ 5.89
Guaisa S.A................................................. (\1\)
Inlandes S.A............................................... (\1\)
Mundiflor.................................................. 5.89
Velvet Flores Cia S.A...................................... (\1\)
------------------------------------------------------------------------
\1\ No shipments during the period of review; since there was no prior
review of this company, the ``all other'' rate from the less-than-fair-
value (LTFV) investigation is applicable.
The Department will instruct the Customs Service to assess
antidumping duties on all appropriate entries. Individual differences
between United States price and foreign market value may vary from the
percentages stated above. The Department will issue appraisement
instructions on each exporter directly to the Customs Service.
Furthermore, the following deposit requirements will be effective
upon publication of these final results of administrative review for
all shipments of the subject merchandise entered, or withdrawn from
warehouse for consumption, as provided by section 751(a)(1) of the Act:
(1) The cash deposit rate for the reviewed companies will be the rates
as listed above, except for Florisol Cia, Ltda., for which, because the
margin is de minimis, we will instruct the Customs Service to require a
cash deposit of zero percent; (2) for
[[Page 37047]]
previously reviewed or investigated companies not listed above, the
cash deposit rate will continue to be the company-specific rate
published for the most recent period; (3) if the exporter is not a firm
covered in this review, a prior review, or the original LTFV
investigation, but the manufacturer is, the cash deposit rate will be
the rate established for the most recent period for the manufacturer of
the merchandise; and (4) the cash deposit rate for all other
manufacturers or exporters will be the ``all other'' rate of 5.89
percent. This is the rate established during the LTFV investigation.
These deposit requirements shall remain in effect until publication
of the final results of the next administrative review.
This notice also serves as a final reminder to importers of their
responsibility under 19 CFR 353.26 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.
This notice also serves as the only reminder to parties subject to
administrative protective order (APO) of their responsibility
concerning the return or destruction of proprietary information
disclosed under APO in accordance with 19 CFR 353.34(d). Failure to
comply is a violation of the APO.
This administrative review and notice are in accordance with
section 751(a)(1) of the Tariff Act (19 U.S.C. 1675(a)(1)) and 19 CFR
353.22.
Dated: July 8, 1996.
Robert LaRussa,
Acting Assistant Secretary for Import Administration.
[FR Doc. 96-18054 Filed 7-15-96; 8:45 am]
BILLING CODE 3510-DS-P
