[Federal Register Volume 69, Number 129 (Wednesday, July 7, 2004)]
[Notices]
[Pages 40867-40868]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-15409]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-201-601]


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

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.

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.

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

[[Page 40868]]

fair value (LTFV) investigation or any administrative review.\1\
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    \1\ The Department found that the highest rate was aberrational, 
and therefore, was unsuitable for use as BIA.
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    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.
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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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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:

------------------------------------------------------------------------
                                                          Amended Final
                        Company                           Results 1991-
--------------------------------------------------------------1992------
Rancho El Aguaje......................................            18.20%
Rancho Guacatay.......................................            18.20%
Rancho El Toro........................................            18.20%
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    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.

    Dated: June 24, 2004.
James J. Jochum,
Assistant Secretary for Import Administration.
[FR Doc. 04-15409 Filed 7-6-04; 8:45 am]
BILLING CODE 3510-DS-S