67 FR 15528, April 2, 2002

DEPARTMENT OF COMMERCE

International Trade Administration

[A-122-837]
 
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.

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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: (202) 482-4794 or (202) 482-1690, 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.

[[Page 15529]]

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:

------------------------------------------------------------------------
                                               Final       Amended final
             Exporter/Grower               determination   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                   1.86            1.85
 Distributors, Inc.)....................
All Others..............................           16.22           16.53
------------------------------------------------------------------------


[[Page 15530]]

    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.
[FR Doc. 02-7956 Filed 4-1-02; 8:45 am]
BILLING CODE 3510-DS-P