[Federal Register Volume 66, Number 203 (Friday, October 19, 2001)]
[Notices]
[Pages 53203-53206]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-26538]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-122-837]


Notice of Amended Preliminary Determination of Sales at Less Than 
Fair Value and Postponement of Final Determination: Greenhouse Tomatoes 
From Canada

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

ACTION: Notice of amended preliminary determination of sales at less 
than fair value and postponement of final determination.

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SUMMARY: The Department of Commerce is amending the preliminary 
determination of sales at less than fair value in the antidumping duty 
investigation of greenhouse tomatoes from Canada to reflect the 
correction of a significant ministerial error made in the dumping-
margin calculation regarding BC Hot House Foods, Inc., and is 
postponing the final determination.

EFFECTIVE DATE: October 19, 2001.

FOR FURTHER INFORMATION CONTACT: Mark Ross or Thomas Schauer, AD/CVD 
Enforcement 3, Import Administration, International Trade 
Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW., Washington, DC 20230; telephone; (202) 482-
4794 or (202) 482-0410, 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 2000).

Significant Ministerial Error

    The Department of Commerce (the Department) is amending the 
preliminary determination of sales at less than fair value in the 
antidumping duty investigation of greenhouse tomatoes from Canada to 
reflect the correction of a significant ministerial error made in the 
dumping-margin calculation regarding BC Hot House Foods, Inc., in that 
determination, pursuant to 19 CFR 351.224(g)(1) and (g)(2). A 
ministerial error is defined as an error in 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). A significant ministerial error is defined as an error, 
the correction of which, singly or in combination with other errors, 
would result in (1) a change of at least five absolute percentage 
points in, but not less than 25 percent of, the weighted-average 
dumping margin calculated in the original (erroneous) preliminary 
determination; or (2) a difference between a weighted-average dumping 
margin of zero or de minimis and a weighted-average dumping margin of 
greater than de minimis or vice versa. See 19 CFR 351.224(g). We are 
publishing this amendment to the preliminary determination pursuant to 
19 CFR 351.224(e). As a result of this amended preliminary 
determination, we have revised the weighted-average dumping margin for 
BC Hot House Foods, Inc.

Scope of 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 Allegation

    On October 1, 2001, the Department issued its affirmative 
preliminary determination in this proceeding. See Notice of Preliminary 
Determination of Sales at Less Than Fair Value: Greenhouse Tomatoes 
From Canada, 66 FR 51010 (October 5, 2001) (Preliminary Determination). 
The following five companies are respondents in this investigation: BC 
Hot House Foods, Inc.,

[[Page 53204]]

Red Zoo Marketing (a.k.a. Produce Distributors, Inc.), Veg Gro Sales, 
Inc. (a.k.a. K & M Produce Distributors), J-D Marketing, Inc., and 
Mastronardi Produce Ltd.
    On October 5 and 9, 2001, the Department received timely 
allegations of ministerial errors in the Preliminary Determination from 
BC Hot House Foods, Inc., and Red Zoo Marketing, respectively. BC Hot 
House Foods, Inc., alleged three ministerial errors: (1) The Department 
used arithmetically incorrect conversion factors in calculating the 
warehousing expense adjustment, (2) the Department incorrectly used a 
simple average, not a weighted average, to combine certain growers' 
costs, and (3) the Department incorrectly eliminated transactions with 
billing adjustments that exceed gross unit price only if the 
adjustments bore a negative value rather than eliminating billing 
adjustments with both positive and negative vales that exceed gross 
unit price. See October 5, 2001, letter from BC Hot House Foods, Inc., 
alleging ministerial errors in the Preliminary Determination. Red Zoo 
Marketing alleges that the Department made a ministerial error in 
calculating separate costs for roma tomatoes-on-the-vine (TOVs) and 
cherry TOVs produced by Great Northern Hydroponics. See October 9, 
2001, letter from Red Zoo Marketing alleging ministerial errors in the 
Preliminary Determination.
    We have reviewed our preliminary dumping-margin calculations for BC 
Hot House Foods, Inc., and agree that only one of the three errors that 
the respondent alleges is a ministerial error within the meaning of 19 
CFR 351.224(f). Specifically, we agree that we used arithmetically 
incorrect conversion factors in calculating the warehousing expense 
adjustment. In the Preliminary Determination we treated the warehousing 
expense adjustment as if the respondent reported it on a per kilogram 
basis. After further analyzing the record in response to the 
ministerial-error allegation, we find that the record indicates that BC 
Hot House Foods, Inc., reported the warehousing expense adjustment on a 
per-case basis as claimed in its ministerial-error allegation. For 
example, in the respondent's August 31, 2001, and September 5, 2001, 
submissions, it specifically stated that the unit basis for these 
warehousing expenses is Canadian dollars per case. Further, the figure 
BC Hot House Foods, Inc., used as the denominator for calculating the 
warehousing expense adjustment is only one third the size of the 
kilogram value that it reported in the volume and value table at 
Exhibit A-24 of its August 23, 2001, supplemental questionnaire 
response. This supports that BC Hot House Foods, Inc., calculated and 
reported the warehousing expense adjustment on a per-case basis. 
Furthermore, we determine that this ministerial error rises to the 
level of a ``significant error'' pursuant to 19 CFR 351.224(g)(1) and 
(g)(2), and we are amending the Preliminary Determination to reflect 
the correction of this significant ministerial error made in the 
dumping-margin calculations for BC Hot House Foods, Inc., pursuant to 
19 CFR 351.224(e). See the BC Hot House Foods, Inc., Amended 
Preliminary Determination Analysis Memorandum dated October 15, 2001. 
We have corrected this ministerial error by treating the warehousing 
expense adjustment as a per-case amount in the dumping-margin 
calculation.
    After analyzing the other two ministerial errors alleged by BC Hot 
House Foods, Inc., we have determined that the alleged ``errors'' the 
respondent describes are not ministerial errors, and that the 
allegations are more properly classified as comments on our 
methodology. With regard to the allegation that we incorrectly used a 
simple average, not a weighted average, to combine certain growers' 
costs, on page 6 of our October 1, 2001, Preliminary Determination 
Analysis Memorandum for BC Hot House Foods, Inc., we specifically 
stated that this is the methodology we intended to use where more than 
one of the ``cost respondents'' provided costs for a given product. 
This was not a ministerial error. Similarly, with regard to BC Hot 
House Foods, Inc.'s, allegations that we incorrectly eliminated 
transactions with billing adjustments that exceed gross unit price only 
if the adjustments bore a negative value, rather than eliminating 
billing adjustments with both positive and negative values that exceed 
gross unit price, we do not find this to be a ministerial error. The 
elimination of transactions with negative billing adjustments that 
exceed gross unit price is consistent with our practice of disregarding 
transactions with adjustments that result in negative prices. See, 
e.g., Gray Portland Cement and Clinker From Mexico: Final Results of 
Antidumping Duty Administrative Review, 63 FR 12764, 12781 (March 16, 
1998). Further, the methodology we applied is consistent with the 
explanation provided on page 10 of our October 1, 2001, Preliminary 
Determination Analysis Memorandum for BC Hot House Foods, Inc. With 
regard to billing adjustments where the positive values of such 
adjustments exceed gross unit price, we included such transactions in 
the dumping-margin calculation because there is no information on the 
record that supports their exclusion.
    As noted above, Red Zoo Marketing alleges that the Department made 
a ministerial error in calculating separate costs for roma tomatoes-on-
the-vine (TOVs) and cherry TOVs produced by Great Northern Hydroponics. 
Red Zoo Marketing claims that the cost figures the Department 
calculated are ``so grossly overstated and unrealistic as to be clear 
error'' and that the costs the Department calculated for these tomatoes 
are many times greater than the next highest cost of any type of tomato 
produced by any other Canadian producer. Red Zoo Marketing further 
claims that the vast majority of its production is of round red TOVs 
and alleges that cost differences between different varieties of TOVs 
are not significant because, according to Red Zoo Marketing, all 
require the same inputs and have comparable productivity and vine life.
    Red Zoo Marketing further contends that the error was caused in 
large part by the Department's faulty question in its supplemental 
questionnaire. Because of the way the question was worded and because 
Red Zoo Marketing did not know the reason the Department asked the 
question, Red Zoo Marketing states that it reported the product-
specific areas as of December 31, 1999, and December 31, 2000. Red Zoo 
Marketing claims that the areas do not and were not intended to 
represent actual usage of the available greenhouse facilities 
throughout the year.
    Red Zoo Marketing suggests two methods for fixing the alleged 
ministerial error. First, it suggests that the Department should use a 
single per-unit cost calculated for all of Great Northern Hydroponics's 
production. Alternatively, if the Department finds it necessary to 
continue calculating costs for each type, Red Zoo Marketing suggests 
that the Department use the data it attached to its October 9, 2001, 
ministerial-error allegation which would provide a more accurate 
measurement of the areas under production throughout the period of 
investigation rather than the year-end snapshot the Department used for 
the preliminary determination.
    After analyzing Red Zoo Marketing's comments, we have determined 
that the alleged ``error'' Red Zoo Marketing describes is not a 
ministerial error. We made our decisions for the preliminary 
determination based on the record before us. Red Zoo Marketing's 
comments about our segregation of

[[Page 53205]]

Great Northern Hydroponics's costs between tomato types and our use of 
the year-end product-specific area usage are more properly classified 
as comments on our methodology and not ministerial errors.
    Further, to the extent the costs we calculated are ``absurdly'' 
high, it is not primarily a result of our methodology or the area data 
we used in calculating the costs but, rather, it overwhelmingly depends 
on the production quantities Great Northern Hydroponics reported. In 
examining Red Zoo Marketing's October 9, 2001, ministerial-error 
allegation, we found that Red Zoo Marketing used new production 
quantities for roma TOVs and cherry TOVs because ``certain products 
were misclassified.'' See Red Zoo Marketing's October 9, 2001, 
ministerial-error allegation submission at page 10. This 
misclassification relates to how Red Zoo Marketing reported product-
specific production quantities prior to the preliminary determination, 
not how the Department made adjustments in calculating the respondent's 
antidumping margin. The production quantities for these tomato types, 
which Red Zoo Marketing submitted after the preliminary determination 
in its ministerial error allegation, are approximately ten times 
greater than those production quantities Great Northern Hydroponics 
reported in its August 28, 2001, supplemental response. To the extent 
that there was an error in data the company submitted to us for use in 
the preliminary determination, it was not an error on our part. 
Accordingly, we have not recalculated Red Zoo Marketing's dumping 
margin for this amended preliminary determination. We intend, however, 
to examine this issue closely at verification.
    The collection of bonds or cash deposits and suspension of 
liquidation will be revised accordingly and parties will be notified of 
this determination in accordance with sections 733(d) and (f) of the 
Act.

Amended Preliminary Determination

    As a result of our correction of a ministerial error for BC Hot 
House Foods, Inc., we have determined that a revised weighted-average 
dumping margin of 33.95 percent applies to this company. In addition, 
we have recalculated the ``all others'' dumping margin to reflect the 
change to BC Hot House Foods, Inc.'s weighted-average dumping margin. 
The revised ``all-others'' dumping margin is 24.04 percent.
    We are issuing an amendment to our instructions directing the 
Customs Service to suspend liquidation on imports of subject 
merchandise. The suspension-of-liquidation instructions will remain in 
effect until further notice.

Postponement of Final Determination and Extension of Provisional 
Measures

    Section 735(a)(2)(A) of the Act provides that a final determination 
may be postponed until not later than 135 days after the publication of 
the preliminary determination if, in the event of an affirmative 
determination, a request for such postponement is made by exporters 
which account for a significant proportion of exports of the subject 
merchandise. The Department's regulations, at 19 CFR 351.210(e)(2), 
require that requests by respondents for postponement of a final 
determination be accompanied by a request for extension of provisional 
measures from a four-month period to not more than six months.
    On October 9, 2001, Red Zoo Marketing, Veg Gro Sales, Inc., J-D 
Marketing, Inc., Mastronardi Produce Ltd., and all Ontario companies 
subject to the ``all others'' rate (collectively referred to as the 
``Ontario companies'') requested that the Department postpone its final 
determination until not later than 135 days after the date of the 
publication of the preliminary determination in the Federal Register. 
On the same day the parties making this request also requested an 
extension of the provisional measures from a four-month period to not 
more than six months. See 19 CFR 351.201(e). According to Attachment 
III of the ``Selection of Respondents'' memorandum from Laurie Parkhill 
to Richard W. Moreland dated May 15, 2001, during 2000 the Ontario 
companies accounted for more than 60 percent of exports of tomatoes 
from Canada. For the reasons explained on page 2 of the same 
memorandum, we determine that these export statistics which we obtained 
from the Customs Service provide a reasonable basis for concluding that 
the Ontario companies account for a significant proportion of exports 
of the subject merchandise.
    On October 11, 2001, BC Hot House Foods, Inc., filed a letter 
stating that it opposes postponement of the final determination. The 
respondent claims that its high preliminary dumping margin will 
adversely affect its suppliers' ability to obtain financing for the 
upcoming season, jeopardize commercial relationships with its 
customers, and make it difficult to coordinate marketing and planting 
strategies for next year. We do not find this to be a compelling reason 
for denying the extension requested by the Ontario companies because 
such concerns are not different from those faced by any of the other 
companies that we preliminarily determined to be making sales at less 
than fair value.
    In accordance with 19 CFR 351.210(b)(2)(ii), because (1) our 
preliminary determination is affirmative, (2) the respondents 
requesting the postponement account for a significant proportion of 
exports of the subject merchandise, and (3) no compelling reasons for 
denial exist, we are granting the Ontario companies' request and are 
postponing the final determination until not later than 135 days after 
the date of the publication of the preliminary determination in the 
Federal Register. Because February 17, 2002, is a Sunday, and February 
18, 2002, is a federal holiday, we are postponing the final 
determination until no later than Tuesday, February 19, 2002. 
Suspension of liquidation, where applicable, will be extended 
accordingly.

International Trade Commission Notification

    In accordance with section 733(f) of the Act, we have notified the 
International Trade Commission (ITC) of our amended preliminary 
determination. If our final determination is affirmative, the ITC will 
determine before the later of 120 days after the date of the 
preliminary determination or 45 days after our final determination 
whether the domestic industry in the United States is materially 
injured, or threatened with material injury, by reason of imports, or 
sales (or the likelihood of sales) for importation, of the subject 
merchandise.

Public Comment

    Case briefs or other written comments in at least ten copies must 
be submitted to the Assistant Secretary for Import Administration no 
later than one week after the issuance of the Department's verification 
reports. A list of authorities used, a table of contents, and an 
executive summary of issues should accompany any briefs submitted to 
the Department. Executive summaries should be limited to five pages 
total, including footnotes. In accordance with section 774 of the Act, 
we will hold a public hearing to afford interested parties an 
opportunity to comment on arguments raised in case or rebuttal briefs, 
provided that such a hearing is requested by an interested party. If a 
request for a hearing is made, the hearing will be tentatively held 
three days after the deadline for submission of the rebuttal briefs at 
the U.S. Department of Commerce, 14th Street

[[Page 53206]]

and Constitution Avenue, NW., Washington, DC 20230. Parties should 
confirm by telephone the time, date, and place of the hearing 48 hours 
before the scheduled time.
    Interested parties who wish to request a hearing, or to participate 
if one is requested, must submit a written request to the Assistant 
Secretary for Import Administration, U.S. Department of Commerce, Room 
1870, by November 5, 2001. Requests should contain the following 
information: (1) The party's name, address, and telephone number; (2) 
the number of participants; and (3) a list of the issues to be 
discussed. Oral presentations will be limited to issues raised in the 
briefs.
    This determination is issued and published in accordance with 
sections 733(f), 735(a)(2), and 777(i)(1) of the Act and 19 CFR 
351.210(b)(2).

    Dated: October 15, 2001.
Faryar Shirzad,
Assistant Secretary for Import Administration.
[FR Doc. 01-26538 Filed 10-18-01; 8:45 am]
BILLING CODE 3510-DS-P