[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