[Federal Register Volume 61, Number 171 (Tuesday, September 3, 1996)]
[Notices]
[Pages 46438-46440]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-22412]
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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 April 10, 1996, 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
cover one exporter, the New Zealand Kiwifruit Marketing Board (NZKMB),
and the period from June 1, 1994, through May 31, 1995. Based on our
analysis of the comments received, we have revised the dumping margin
for NZKMB.
EFFECTIVE DATES: September 3, 1996.
FOR FURTHER INFORMATION CONTACT: Paul M. Stolz or Thomas F. Futtner,
Import Administration, International Trade Administration, U.S.
Department of Commerce, 14th Street and Constitution Avenue, NW.,
Washington, DC 20230; telephone (202) 482-4474 or 482-3814,
respectively.
SUPPLEMENTARY INFORMATION:
Background
On April 10, 1996, the Department published the preliminary results
(61 FR 15924) 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 administrative review in
accordance with section 751 of the Tariff Act of 1930, as amended (the
Act). 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 (URAA). In addition, unless otherwise
indicated, all citations to the Departments regulations are to the
current regulations, as amended by the interim regulations published in
the Federal Register on May 11, 1995 (60 FR 25130).
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 classifiable 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 respondent, the New Zealand
Kiwifruit Marketing Board (NZKMB), and petitioner, the California
Kiwifruit Commission.
Comment 1
The petitioner alleged a number of specific ministerial errors
pertaining to the application of the computer program used by the
Department and submitted specific suggested program edits.
Respondents also alleged ministerial errors pertaining to the
computer program. In one instance, respondent alleged a ministerial
error with regard to transportation insurance, and petitioner argued
that this was not an error. This issue is considered in comment 2. In
all other instances there was no disagreement between the petitioner
and respondent concerning the alleged
[[Page 46439]]
ministerial errors made by the Department.
The errors alleged by the petitioner and respondent related to the
following: 1) exchange rates were incorrectly applied; 2) certain
indirect selling expenses were erroneously labeled as direct expenses
while certain direct expenses were labeled as indirect; 3) delivery
premiums were not added to the starting price for both U.S. and New
Zealand sales; 4) inventory carrying costs were not included in home
market indirect selling expenses; 5) imputed credit expenses were
deducted from the price in performing the cost test; 6) General and
Administrative (G&A) expenses were double counted.
DOC Position
With respect to the ministerial error allegations other than that
which is considered in comment 2, the Department has incorporated the
suggested edits into the computer program. (See memorandum to the file
dated July 22, 1996, for a detailed description of all adjustments
made.)
Comment 2
Respondent claims that transportation insurance expenses to U.S.
sales should not be deducted from the constructed export price (CEP)
starting price as this is an indirect selling expense. Respondent
states that these expenses are incurred in New Zealand and are
therefore not direct U.S. expenses. Furthermore, respondent states that
in the Department's analysis memorandum for the preliminary
determination in this proceeding, the Department stated that it
intended to treat transportation insurance as an indirect selling
expense.
Petitioner states that transportation insurance should be deducted
from the CEP starting price because it is an expense identifiable with
U.S. sales regardless of whether respondent considers it to be a direct
or indirect selling expense.
DOC Position
Although the Department did indicate in its analysis memorandum for
the preliminary results that it was treating transportation insurance
as an indirect selling expense, upon reassessment of this point, we
agree with petitioner that transportation insurance should be deducted
from CEP as it should similarly be deducted from New Zealand normal
value (NV). Transportation insurance is a movement expense and can be
linked to specific shipments to different markets. We have made the
appropriate adjustments to the computer program to deduct the amount of
transportation insurance allocated to U.S. sales for the CEP starting
price and New Zealand NV.
Comment 3
Petitioner argues that although New Zealand home market sales
exceeded five percent of U.S. sales during the period of review (POR),
particular market conditions in New Zealand during the POR were such
that the Department should not consider that market to be viable.
Petitioner claims that particular market conditions in New Zealand did
not permit proper comparisons between New Zealand sales and U.S. sales.
Petitioner relies on an exception outlined in the URAA Statement of
Administrative Action (SAA) at 151-152: ``The Administration intends
that Commerce will normally use the five percent threshold except where
some unusual situation renders its application inappropriate. * * * In
unusual situations * * * home market sales constituting more than five
percent of sales to the United States could be considered not viable.''
Petitioner states that the New Zealand market was distorted because New
Zealand law and respondent's own regulations establish respondent as
the exclusive exporter of export quality kiwifruit from New Zealand.
Petitioner claims that New Zealand has been a ``dumping ground'' for
production that cannot be sold in export markets, thus driving down
domestic prices. Finally, petitioner claims that all home market sales
are below cost, and that this should be a factor in evaluating the
viability of the market. Petitioner requested that the Department
require respondent to submit Japanese sales and that the Department use
this information to establish NV.
The respondent asserts that the URAA explicitly and clearly
establishes that a home market is considered viable if home market
sales equal or exceed five percent of U.S. sales. Respondent notes that
the SAA at 151, establishes an exception to this rule for ``particular
market situations.'' Respondent notes that such circumstances only
exist where ``* * * a single sale in the home market constitutes five
percent of sales to the United States or there is government control
over pricing to such an extent that home market prices cannot be
considered to be competitively set. It may also be the case that a
particular market situation could arise from differing patterns of
demand in the United States and in the foreign market. For example, if
significant price changes are closely correlated with holidays which
occur at different times of the year in the two markets, the prices in
the foreign market may not be suitable for comparison to prices in the
United States.'' Respondent asserts that none of these situations
prevailed in the New Zealand home market during the POR.
DOC Position
We disagree with petitioner. The home market clearly meets the
quantitative standard set forth in 19 U.S.C. 1677b(a)(1)(C). We note
that, in past reviews of kiwifruit from New Zealand, where the
quantitative test was based on third country markets rather than the
U.S. market, the New Zealand home market was not viable. Under the new
law, viability is determined on the basis of the relationship between
home market sales and U.S. sales. Since sales of subject merchandise in
New Zealand substantially exceeded five percent of those in the U.S.
market, the quantitative test of the home market under current law is
satisfied.
Petitioner alleges that the New Zealand market is an inappropriate
basis for normal value because the ``particular market situation in the
exporting country does not permit a proper comparison with the export
price or constructed export price,'' as these terms are used in 19
U.S.C. 1677b(a)(1)(C)(iii). The SAA that accompanied the URAA, at 822,
establishes that a ``particular market situation'' might exist where a
single sale in the home market exceeds the quantitative viability
threshold or where there is government control over pricing to such an
extent that home market prices cannot be considered to be competitively
set. The SAA also mentions situations in which demand patterns are
different in the foreign market and the United States.
As the language of the SAA makes clear, we are not limited by the
examples of ``particular market situations'' described in that
document. However, based on the evidence on the record, we find that
there is no ``particular market situation,'' within the meaning of 19
U.S.C. 1677b(a)(1)(c)(iii) which warrants a departure from the normal
five percent test. We are not persuaded by petitioner's assertion that,
during the POR, New Zealand was used as a ``dumping ground'' for
production that could not be sold in export markets. The record does
not demonstrate that kiwifruit sold in export markets by the NZKMB is
of higher quality than kiwifruit sold in the home market by the NZKMB.
Nor does NZKMB's dominance in the exportation of kiwifruit from New
Zealand establish that there were price controls in the New Zealand
kiwifruit market. Indeed, evidence on the record
[[Page 46440]]
demonstrates that the NZKMB is not strictly the exclusive exporter of
kiwifruit from New Zealand. Sales of kiwifruit by any grower, reseller
or other party, to the Australian market is permissible under New
Zealand law. Also, New Zealand resellers of kiwifruit are permitted to
export to other markets if they are licensed by the NZKMB. Thus export
markets and export pricing are not subject to absolute control and
manipulation by the NZKMB. Even if the NZKMB were in a position to
manipulate export prices, there is no evidence on the record that the
NZKMB acts on behalf of the New Zealand government to control prices in
the home market. As a result, we find that petitioners have not
presented evidence of ``price control'' sufficient to satisfy the
``particular market situation'' standard under the new law.
A finding of sales below cost of production does not, in and of
itself, establish that a ``particular market situation'' exists. It is
the Department's longstanding practice to first determine whether the
home market is viable and then to determine whether sales are made
below cost of production. In this review, we applied the below-cost
test, as described in the preliminary results of review, and found that
within an extended period of time, substantially more than 80 percent
of the home market sales were sold at prices below the COP, which would
not permit the recovery of all costs within a reasonable period of
time. Since a substantial number of sales were made below cost we
relied on constructed value (CV). Since the remaining above-cost
sale(s) in this review segment had no corresponding model matches, we
also relied on CV where sale(s) were above-cost.
For these reasons, based on the evidence on the record, we find
that the New Zealand market does not represent a ``particular market
situation'' within the meaning of 19 U.S.C. 1677b(a)(1)(C)(iii). As a
result, we reaffirm our preliminary determination on this issue.
Final Results of Review
As a result of comments received and programming errors corrected,
we have revised our preliminary results.
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Margin
Manufacturer/exporter (Percent)
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New Zealand Kiwifruit Marketing Board...................... 2.81
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The Customs Service shall assess antidumping duties on all
appropriate entries. Individual differences between U.S. price and NV
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 review
firm will be 2.81 percent; and (2) the cash deposit rate for
merchandise exported by all other manufacturers and exporters will be
the ``all others'' rate of 98.60 percent established in the less-than-
fair-value investigation; in accordance with the Department practice.
See Floral Trade Council v. United States, 822 F. Supp. 766 (1993), and
Federal Mogul Corporation, 822 F. Supp. 782 (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: August 22, 1996.
Robert S. La Russa,
Acting Assistant Secretary for Import Administration.
[FR Doc. 96-22412 Filed 8-30-96; 8:45 am]
BILLING CODE 3510-DS-M
