[Federal Register Volume 61, Number 36 (Thursday, February 22, 1996)]
[Notices]
[Pages 6812-6814]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3899]



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DEPARTMENT OF COMMERCE
[A-201-601]


Fresh Cut Flowers From Mexico; Final Results of Antidumping Duty 
Administrative Review

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

ACTION: Notice of final results of antidumping duty administrative 
review.

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[[Page 6813]]


SUMMARY: On September 26, 1995, the Department of Commerce (the 
Department) published the preliminary results of its administrative 
review of the antidumping duty order on certain fresh cut flowers from 
Mexico. The period of review is April 1, 1992 through March 31, 1993.
    We gave interested parties an opportunity to comment on our 
preliminary results. We have not changed our preliminary results of 
review.

EFFECTIVE DATE: February 22, 1996.

FOR FURTHER INFORMATION CONTACT: Rebecca Trainor or Maureen Flannery, 
Office of Antidumping Compliance, Import Administration, International 
Trade Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-
4733.

SUPPLEMENTARY INFORMATION:

Background

    On September 26, 1995, the Department published in the Federal 
Register (60 FR 49577) the preliminary results of its administrative 
review of the antidumping duty order on certain fresh cut flowers from 
Mexico (52 FR 13491 (April 23, 1987)). The preliminary results 
indicated that no dumping margins existed for four of the respondents 
in this review: Rancho El Aguaje (Aguaje), Rancho Guacatay (Guacatay), 
Rancho El Toro (Toro), and Rancho Del Pacifico (Pacifico). We applied 
dumping margins based on the best information available (BIA) to 
Tzitzic Tareta, Rancho Mision el Descanso, Rancho Alisitos, and Las 
Flores de Mexico, because they failed to answer the antidumping 
questionnaire. Two producers, Visaflor S. de P.R. (Visaflor) and Rancho 
Daisy (Daisy), made no shipments to the United States during the period 
of review.

Applicable Statutes and Regulations

    The Department has conducted this review in accordance with section 
751 of the Tariff Act of 1930, as amended (the Act). Unless otherwise 
stated, all citations to the statutes and to the Department's 
regulations are references to the provisions as they existed on 
December 31, 1994.

Scope of the Review

    The products covered by this review are certain fresh cut flowers, 
defined as standard carnations, standard chrysanthemums, and pompon 
chrysanthemums. During the period of review (POR), such merchandise was 
classifiable under Harmonized Tariff Schedule of the United States 
(HTSUS) items 0603.10.7010 (pompon chrysanthemums), 0603.10.7020 
(standard chrysanthemums), and 0603.10.7030 (standard carnations). The 
HTSUS item numbers are provided for convenience and Customs purposes 
only. The written description remains dispositive as to the scope of 
the order.
    This review covers sales of the subject merchandise entered into 
the United States during the period April 1, 1992 through March 31, 
1993.

Analysis of the Comments Received

    The petitioner, the Floral Trade Council, submitted a case brief on 
October 26, 1995. We received no other comments on the preliminary 
results. The petitioner combined in one case brief its comments for 
this review and the 1993-1994 review. Below, we have addressed only 
those comments that appear to be relevant to the 1992-1993 review.
    Comment 1: The petitioner claims that the Department overstated 
exporter's sales prices (ESP) by failing to deduct commissions paid to 
related parties. The petitioner states that the statute and the 
Department's regulations require the Department to deduct U.S. 
commissions and indirect selling expenses, regardless of whether the 
consignment agent is a related party. For this reason, the petitioner 
argues, the Department should reconsider its treatment of related party 
commissions in this case and as articulated in Fresh Cut Roses from 
Colombia and Fresh Cut Roses from Ecuador, 60 FR 6980, 7019 (Feb. 6, 
1995) (Roses).
    The petitioner argues that, in Roses, the Department erroneously 
distinguished between commissions paid to related and unrelated 
parties, while the statute, which makes no such distinction, simply 
requires that commissions be deducted from ESP. The petitioner states 
that the Department's treatment of related party commissions in Roses 
is irrational, and it is inconsistent with Timken Co. v. United States, 
630 F. Supp. 1327, 1341 (CIT 1986) (Timken). The petitioner asserts 
that, in Timken, the Court supported the Department's rationale for not 
deducting related party profits because they were not commissions, 
while, in Roses, the Department refused to deduct commissions because 
they are profits. The petitioner points out that, in the 1989-1990 
review of Certain Fresh Cut Flowers from Mexico, the Department 
deducted related party commissions found to be at arm's length (57 FR 
7732 (March 4, 1992)).
    Finally, the petitioner states that, even assuming that commissions 
need not always be deducted under section 772(e)(1) of the Act, the 
Department must deduct from ESP all direct selling expenses incurred at 
arm's length as circumstance-of-sale adjustments.
    The Department's Position:
    We disagree with the petitioner. Since the Department published its 
final results in the 1989-1990 review of this order, we have 
established the practice of collapsing exporters and their related 
consignment agents in ESP situations. The petitioner's arguments do not 
persuade us to deviate from this practice. As fully explained in Roses, 
the Department considers commissions paid to related parties to be 
intracompany transfers of funds, which are not deductible from ESP. See 
also Furfuryl Alcohol From South Africa; Final Determination of Sales 
at Less Than Fair Value 60 FR 22551 (May 8, 1995). Further, we do not 
consider such a transfer of funds to be a direct selling expense. 
Instead of making a deduction for commissions, the Department deducts 
the amount of the related importer's U.S. direct and indirect selling 
expenses pursuant to section 772(e)(2) of the Act. This methodology 
avoids double-counting the direct and indirect selling expense 
component of the related party commission, and avoids deducting any of 
the related importer's profit, as the Court affirmed in Timken.
    Comment 2: The petitioner claims that the Department should confirm 
that the respondents' reported credit costs account for the time 
between receipt of payment and deposit into the respondents' bank 
accounts, as the Department did in the 1989-1990 administrative review.
    The Department's Position:
    We disagree with the petitioner. For the purposes of calculating 
imputed credit costs, it is our practice to calculate the number of 
credit days based on the number of days between the date of shipment 
and the date of payment. If actual payment dates are not readily 
accessible, we normally allow respondents to base the number of credit 
days on the average age of accounts receivable. See, e.g., Color 
Television Receivers from the Republic of Korea; Final Results of 
Antidumping Duty Administrative Review, 56 FR 12701 (Comment 28)(March 
27, 1991).
    We found during verification that the respondents' methodologies 
for calculating the average age of accounts receivable were reasonable. 
For further discussion, see the public verification reports for Aguaje 
and Pacifico, on file in Room B099 of the Commerce Department.
    Comment 3: The petitioner states that the Department should 
describe the 

[[Page 6814]]
manner in which it confirmed that Visaflor and Daisy made no shipments 
of the subject merchandise during the review period.
    The Department's Position:
    To determine whether Visaflor and Daisy made shipments of the 
subject merchandise to the United States during the review period, the 
Department followed its standard practice of issuing an electronic mail 
message to the Customs Service. The Customs Service then transmitted 
this message to field personnel, requesting notification if the subject 
merchandise exported by Visaflor or Daisy entered the United States 
during the review period. A copy of this message is on file in Room 
B099 of the Commerce Department. We received no information from 
Customs that Visaflor and Daisy had shipments of the subject 
merchandise during the POR.
    Comment 4: The petitioner agrees with the Department's decision to 
assign non-responding companies a margin based on BIA, however, the 
petitioner states that the Department should not have assigned these 
companies the second-highest rate found for any respondent. By doing 
so, the petitioner argues, the Department unnecessarily and unfairly 
departed from its practice of assigning non-responding companies the 
highest available margin.
    The petitioner states that, although the Department did not use the 
highest rate as BIA in prior reviews, the respondents in those reviews 
had, at least, submitted partial or complete questionnaire responses. 
The petitioner argues that the Department has no evidence that the 
highest margin is unrepresentative, since the parties failed to respond 
to the questionnaire. Furthermore, the petitioner states, the 
respondents are presumed to be aware of the highest possible margin 
when they decided not to respond to the antidumping questionnaire, 
citing Rhone Poulenc, Inc. v. United States, 899 F.2d 1185, 1191 (Fed. 
Cir. 1990).
    The Department's Position:
    We disagree with the petitioner. Prior to 1993 and the CIT's 
decisions in The Floral Trade Council v. United States, 822 F.Supp. 766 
(CIT 1993), and Federal Mogul Corporation and the Torrington Company v. 
United States, 839 F.Supp. 864 (CIT 1993), the Department determined an 
``all others'' or ``new shippers'' rate during the course of each 
administrative review. In the 1989-1990 review of this order, the 
Department did not include Florex's rate of 264.43 percent in its 
determination of the updated ``all others'' rate. The CIT supported the 
Department's position, stating that, ``Florex's accumulated interest 
expenses from a separate line of business that never began operations 
skewed its cost of production figures and should not have been included 
in the review analysis.'' The Floral Trade Council v. the United 
States, 799 F. Supp. 116 (CIT 1992).
    The Court recognized that Florex's rate was unrepresentative of the 
other companies in that review, and by extension, of the entire flower 
industry because: (1) it was an out of proportion rate explained by 
factors unassociated with the overall industry, and (2) Florex 
represented only a small fraction of the industry. The Court concluded 
that ``ITA did not err in finding it would be punitive to maintain 
Florex's rate as the ``all other'' rate. Id. at 119. Therefore, 
although we received no information from the non-responding companies, 
we maintain that the Florex rate is unrepresentative of the Mexican 
fresh cut flower industry, and unsuitable to be applied to the non-
responding companies as BIA.

Final Results of Review

    We determine that the following dumping margins exist for the 
period April 1, 1992, through March 31, 1993:

------------------------------------------------------------------------
                                                                Margin  
                   Manufacturer/exporter                      (percent) 
------------------------------------------------------------------------
Rancho el Aguaje...........................................         0.00
Rancho Guacatay............................................         0.00
Rancho el Toro.............................................         0.00
Rancho del Pacifico........................................         0.00
Rancho Daisy...............................................        *0.00
Visaflor...................................................        *0.00
Tzitzic Tareta.............................................        39.95
Rancho Mision el Descanso..................................        39.95
Rancho Alisitos............................................        39.95
Las Flores de Mexico.......................................        39.95
All Others.................................................       18.28 
------------------------------------------------------------------------
* No shipments subject to this review. Rate is from the last relevant   
  segment of the proceeding in which the firm had shipments.            

    Because Guacatay received a margin of 39.95 percent for the 1991-
1992 review period, we have determined not to revoke the antidumping 
duty order with respect to Guacatay. (See Notice of Final Results of 
Antidumping Duty Administrative Review; Certain Fresh Cut Flowers from 
Mexico, 60 FR 49569 (September 26, 1995).)
    The following deposit requirements shall be effective for all 
shipments of the subject merchandise that are entered or withdrawn from 
warehouse, for consumption on or after the publication date of these 
final results, as provided by section 751(a)(1) of the Act: (1) the 
cash deposit rates for the reviewed companies shall be the above rates; 
(2) for 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 less-than-fair-
value (LTFV) investigation, but the manufacturer is, the cash deposit 
rate shall be the rate established for the most recent period for the 
manufacturer of the merchandise; and (4) if neither the exporter nor 
the manufacturer is a firm covered in this or any previous review, the 
cash deposit rate will be 18.28 percent, the all others rate 
established in the LTFV investigation. These deposit requirements shall 
remain in effect until publication of the final results of the next 
administrative review.
    This notice 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 a reminder to parties subject to 
administrative protective order (APO) of their responsibility 
concerning the disposition of proprietary information disclosed under 
APO in accordance with 19 C.F.R. 353.34(d) or 355.34(d). Timely written 
notification of return/destruction of APO materials or conversion to 
judicial protective order is hereby requested. Failure to comply with 
the regulations and the terms of an APO is a sanctionable violation.
    This administrative review and notice are in accordance with 
section 751(a)(1) of the Act (19 U.S.C. 1675(a)(1)) and section 353.22 
of the Department's regulations.

    Dated: February 13, 1996.
Susan G. Esserman,
Assistant Secretary for Import Administration.
[FR Doc. 96-3899 Filed 2-21-96; 8:45 am]
BILLING CODE 3510-DS-P