[Federal Register Volume 61, Number 194 (Friday, October 4, 1996)]
[Notices]
[Pages 51912-51913]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-25540]


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DEPARTMENT OF COMMERCE
[A-614-801]


Fresh Kiwifruit From New Zealand; Final Results of Antidumping 
Administrative Review

AGENCY: Import Administration, International Trade Administration, 
Commerce.

ACTION: Notice of final results of antidumping duty administrative 
review.

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SUMMARY: On October 23, 1995, the Department of Commerce (the 
Department) published the preliminary results of its administrative 
review of the antidumping duty order on fresh kiwifruit from New 
Zealand. The review covers one exporter, the New Zealand Kiwifruit 
Marketing Board (NZKMB), and the period from June 1, 1993, through May 
31, 1994. Based on our analysis of the comments received, we have 
revised the dumping margin for NZKMB.

EFFECTIVE DATE: October 4, 1996.

FOR FURTHER INFORMATION CONTACT:
Paul M. Stolz or Thomas F. Futtner, Office of Antidumping Compliance, 
Import Administration, International Trade Administration, U.S. 
Department of Commerce, 14th Street and Constitution Avenue, N.W., 
Washington, DC 20230; telephone (202) 482-4474 or 482-3814, 
respectively.

SUPPLEMENTARY INFORMATION:

Background

    On October 23, 1995, the Department published the preliminary 
results (60 FR 54333) of its administrative review of the antidumping 
duty order on fresh kiwifruit from New Zealand (57 FR 23203 (June 2, 
1992)). The Department has now completed this administration review in 
accordance with section 751 of the Tariff Act of 1930, as amended (the 
Act). Unless otherwise indicated, all citations to the statute and to 
the Department's regulations are in reference to the provisions as they 
existed on December 31, 1994.

Scope of the Review

    The product covered by the order under review is fresh kiwifruit. 
Processed kiwifruit, including fruit jams, jellies, pastes, purees, 
mineral waters, or juices made from or containing kiwifruit, are not 
covered under the scope of the order. The subject merchandise is 
currently classified under subheading 0810.90.20.60 of the Harmonized 
Tariff Schedule (HTS). Although the HTS number is provided for 
convenience and customs purposes, our written description of the scope 
of this review is dispositive.

Analysis of Comments Received

    We invited interested parties to comment on the preliminary 
results. We received timely comments from respondents, the NZKMB, and 
petitioner, the California Kiwifruit Commission.

Comment 1

    The petitioner alleged a number of ministerial errors pertaining to 
the application of the computer program used by the Department in its 
analysis. The first error alleged pertained to adjustments to U.S. 
prices and expenses, specifically: (a) certain currency conversions 
were made in error, (b) certain movement expenses were not included in 
calculations, and (c) other direct and indirect expenses were not 
included in calculations. The second error alleged pertained to the 
cost of production (COP) test: (a) certain elements of NZKMB's costs 
were not included in COP, (b) certain currency conversions were made in 
error, (c) certain direct and indirect expenses were not included in 
calculations and adjustments, and (d) certain adjustments were treated 
as expenses. The third error alleged pertained to foreign market value 
(FMV) selection, specifically: certain products were not properly 
matched in the concordance schedule.
    Respondent alleged ministerial errors pertaining to two general 
areas. The first pertained to calculation of third country net prices: 
(a) two direct selling expense variables were not deducted from the 
third country net price, (b) the packing figure was incorrect, and (c) 
credit expenses were not properly deducted from net price. The second 
pertained to certain elements of the COP test: certain elements of COP 
were not properly included in the COP figure.

DOC Position

    We agree with both petitioner and respondent. The Department has 
made corrections to the computer program in order to properly calculate 
COP and FMV. (See memo to the file dated August 27, 1996 for a detailed 
description of all adjustments made.)

Comment 2

    Respondent asserts that although grower 21 refused to respond to 
the Department's COP questionnaire, ``punitive'' best information 
available (BIA) should not be applied for the per unit COP of grower 
21. Respondent argues that it has cooperated in good faith and that it 
is not related to the growers from whom it purchases kiwifruit. 
Further, respondent asserts that it is without means to compel growers' 
cooperation.
    Petitioner argues that not only is the application of ``punitive'' 
BIA appropriate, but that in recognition of the fact that the grower-
respondent flatly refused to cooperate, a more adverse BIA should be 
used. Petitioner suggests that the highest cost components be drawn 
from all sampled growers and totaled to produce the BIA per unit cost 
for grower 21.

DOC Position

    We disagree with respondent, but have modified the method of 
determining the BIA rate employed in

[[Page 51913]]

the preliminary determination to be consistent with the approach used 
in the less than fair value investigation. As provided in section 
776(c) of the Act, the Secretary shall use BIA whenever: a party or any 
other person (1) refuses or is unable to produce information in a 
timely manner and in the form required, or (2) otherwise significantly 
impedes an investigation.
    The purpose of BIA is not to punish. It is an investigative tool 
entrusted to the Department by Congress which encourages ``respondents 
to provide the Department with requested information in a timely, 
complete, and accurate manner, so that the investigating authority may 
determine antidumping margins within statutory deadlines.'' Rhone 
Poulenc v. United States, 899 F.2d 1185 (Fed. Cir. 1990).
    In this review, sampled kiwifruit grower number 21 refused to 
respond to our COP questionnaire. We note that while the respondent 
claims it has no control over the many growers in New Zealand, it did 
state that all growers were required by New Zealand law to export 
through the NZKMB during this POR. The NZKMB is, therefore a related 
party to the growers, and each of the growers may be held accountable 
for adequate cooperation in these proceedings. See Koyo Seiko v. United 
States, 96-1116, Court of Appeals for the Federal Circuit. (August 12, 
1996). Accordingly, we are required to assign to this grower a cost 
based on BIA.
    In determining what to use as BIA, we generally followed the 
precedent established in the less-than-fair-value (LTFV) investigation. 
See Final Results of Sales at Less Than Fair Value: Fresh Kiwifruit 
from New Zealand, 57 Fed Reg. 13695, 133696 (April 17, 1992). In this 
case, we used as BIA, the highest calculated per unit COP for a 
responding grower in the same region as grower number 21. Since costs 
in the different growing regions tend to differ, we determined that 
using the highest COP from the same region as the non-responding grower 
would yield a reasonably adverse BIA.

Final Results of Review

    As a result of comments received and programming errors corrected, 
we have revised our preliminary results.

                                                                        
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                     Manufacturer/exporter                       Margin 
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New Zealand Kiwifruit Marketing Board.........................     0.00%
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    The Customs Service shall assess antidumping duties on all 
appropriate entries. Individual differences between U.S. price and FMV 
may vary from the percentage stated above. The Department will issue 
appraisement instructions concerning the respondent directly to the 
U.S. Customs Service.
    Furthermore, the following deposit requirements will be effective 
for all shipments of the subject merchandise, entered, or withdrawn 
from warehouse, for consumption on or after the publication date of 
these final results of administrative review, as provided for by 
section 751(a)(1) of the Act: (1) the cash deposit rate for the 
reviewed firm will be 0.00 percent; and (2) the cash deposit rate for 
merchandise exported by all other manufacturers and exporters who are 
not covered by this review will be the ``all others'' rate of 98.60 
percent established in the less-than-fair-value investigation in 
accordance with Department practice. See Floral Trade Council v. United 
States. 822 F. Supp. 766 (CIT) 1993, and Federal Mogul Corporation v. 
United States, 822 F. Supp. 782 (CIT 1993).
    These deposit requirements shall remain in effect until publication 
of the final results of the next administrative review. This notice 
serves as the 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 a reminder to parties subject to 
administrative protective order (APO) of their responsibility 
concerning the disposition of proprietary information disclosed under 
APO in accordance with 19 CFR 353.34(d). Timely written notification or 
conversion to judicial protective order is hereby requested. Failure to 
comply with the regulations and the terms of the APO is a sanctionable 
violation.
    This administrative review and notice are in accordance with 
section 751(a)(1) of the Act (19 U.S.C. 1675(a)(1)) and 19 CFR 353.22.

    Dated: September 27, 1996.
Barbara R. Stafford,
Acting Assistant Secretary for Import Administration.
[FR Doc. 96-25540 filed 10-3-96; 8:45 am]
BILLING CODE 3510-DS-M