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Notice

Fresh Cut Flowers From Mexico; Notice of Amended Final Results of Administrative Review in Accordance With North American Free Trade Agreement Panel Decision

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AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On December 16, 1996, the North American Free Trade Agreement (NAFTA) Panel (the Panel) remanded the final results of review for certain fresh cut flowers from Mexico (for the period April 1, 1991 through March 31, 1992) to the Department of Commerce (the Department) directing the Department to assign to the Complainants a rate of 18.20 percent. As there is now a final and conclusive NAFTA Panel decision in this action, we are amending our final results.

EFFECTIVE DATE:

July 7, 2004.

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FOR FURTHER INFORMATION CONTACT:

Mark Hoadley at (202) 482-3148, Office of AD/CVD Enforcement VII, Group III, Import Administration, International Trade Administration, U.S. Department of Commerce, Room 7866, 14th Street and Constitution Avenue, N.W., Washington, D.C. 20230.

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SUPPLEMENTARY INFORMATION:

Background

On September 26, 1995, the Department issued the final results of the antidumping duty administrative review on certain fresh cut flowers from Mexico (see Fresh Cut Flowers From Mexico; Final Results of Antidumping Duty Administrative Review, 60 FR 49569 (September 26, 1995) (Final Results)). In the Final Results, the Department assigned to the three Complainants, Rancho El Aguaje (Aguaje), Rancho Guacatay (Guacatay), and Rancho El Toro (Toro), antidumping duty rates based on the best information otherwise available (BIA), because the Department found that they had been uncooperative in responding to the Department's questionnaires, and had impeded the administrative review. The Department determined that the use of BIA was appropriate in accordance with section 776(c) of the Tariff Act of 1930, as amended (the Act). The Department designated the Complainants as uncooperative respondents, and assigned a “first-tier” dumping margin of 39.95 percent, the second highest rate found for any firm in either the less than Start Printed Page 40868fair value (LTFV) investigation or any administrative review.1

On November 27, 1995, the Complainants requested a panel review of the Final Results pursuant to Article 1904 of the North American Free Trade Agreement. On December 16, 1996, the Panel issued its decision in this matter.

In its decision, the Panel upheld the Department's assignment of dumping margins based on BIA, stating that there was substantial evidence in the administrative record to support the Department's determination in the Final Results that the Complainants' responses were misleading, evasive, and impeded the progress of review. The Panel also determined that the Department's decision to resort to BIA was in accordance with the broad discretion granted to it by section 776(c) of the Act.

The Panel disagreed with the Department's determination to assign a first-tier BIA rate to the Complainants, however, because the record indicated that the Complainants cooperated with the Department's requests for information in may respects. The Panel noted that the Department has previously assigned second-tier BIA rates in situations in which respondents were cooperative but failed to provide certain information. The Panel cited Yamaha Motor Co., v. United States, 910 F.Supp. 679 (CIT 1995), Emerson Power Transmission Corp. v. United States, 903 F.Supp. 48 (CIT 1995), and NSK Ltd. v. United States, 910 F.Supp. 663 (CIT 1995), in which the Department assigned second-tier BIA rates to respondents, in spite of substantial omissions and misrepresentations in their questionnaire responses.

The Panel also noted that the Complainants are small ranches that have only recently been required to maintain information for the purpose of filing income tax returns, as a result of a change in Mexican law, and that they each developed an accounting system solely for the purpose of responding to the Department's antidumping questionnaires. In light of these factors, the Panel found that Aguaje, Guacatay, and Toro “exhibited substantial cooperation and that any misleading or evasive information supplied by Complainants did not rise to the level of uncooperativeness required, under the Department's own precedents, to apply a first-tier analysis.” See Decision of the Panel in the Matter of Fresh Cut Flowers from Mexico, Final Results of Antidumping Duty Administrative Review (Panel Decision), December 16, 1996, at 86.

In assigning a second-tier BIA rate, the Panel considered the following options, in accordance with the Department's normal practice:2 1) the Complainants' rates from the LTFV investigation, if they were part of the investigation; 2) the “all others” rate from the investigation, if the Complainants were not part of the LTFV investigation; and, 3) the highest rate calculated in this review for any firm. As the second-tier BIA rate, the Panel chose 18.20 percent, the “all others” rate from the LTFV investigation, because none of the Complainants had participated in the LTFV investigation, and there was no calculated rate in this review that could be assigned. The Panel remanded the Final Results to the Department, and directed the Department to assign to each of the Complainants a less adverse, or “second-tier” BIA rate of 18.20 percent, based on the “all others” rate established in the LTFV investigation.

Amendment to Final Results of Review

Because no further appeals have been filed and there is now a final and conclusive decision in the panel proceeding, we are amending the Final Results, pursuant to the Panel's order, and assigning the second-tier BIA rate of 18.20 percent to Aguaje, Guacatay, and Toro for the period April 1, 1991 through March 31, 1992:

CompanyAmended Final Results 1991-1992
Rancho El Aguaje18.20%
Rancho Guacatay18.20%
Rancho El Toro18.20%

Accordingly, the Department will determine, and U.S. Customs and Border Protection will assess, antidumping duties on all entries of subject merchandise from these three companies during the period April 1, 1991, through March 31, 1992, in accordance with these amended final results.

This notice is issued and published in accordance with section 751(a)(1) of the Act.

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Dated: June 24, 2004.

James J. Jochum,

Assistant Secretary for Import Administration.

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Footnotes

1.  The Department found that the highest rate was aberrational, and therefore, was unsuitable for use as BIA.

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2.  We note that on page 81 of the Panel Decision the Panel misstates the Department's normal practice, in place at the time of the review, for assigning second-tier BIA rates. In Antifriction Bearings from France, et al.; Final Results of Antidumping Duty Administrative Reviews, 57 FR 28360 (June 24, 1992), cited by the Panel, we described second-tier BIA as "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 either the LTFV investigation or a prior administrative review; or 2) the highest calculated rate in this review for the class or kind of merchandise for any firm from the same country of origin." (Emphasis added.)

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[FR Doc. 04-15409 Filed 7-6-04; 8:45 am]

BILLING CODE 3510-DS-S