[Federal Register Volume 63, Number 157 (Friday, August 14, 1998)]
[Notices]
[Pages 43661-43674]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-21927]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

International Trade Administration
[A-549-813]


Notice of Final Results and Partial Rescission of Antidumping 
Duty Administrative Review: Canned Pineapple Fruit From Thailand

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

SUMMARY: On April 9, 1998, the Department of Commerce published the 
preliminary results of its administrative review of the antidumping 
duty order on canned pineapple fruit from Thailand. This review covers 
seven producers/exporters of the subject merchandise. The period of 
review is July 1, 1996, through June 30, 1997. Based on our analysis of 
comments received, these final results differ from the preliminary 
results. The final results are listed below in the section Final 
Results of Review.

EFFECTIVE DATE: August 14, 1998.

FOR FURTHER INFORMATION CONTACT: Charles Riggle or Kris Campbell, 
Office of AD/CVD Enforcement 2, Import Administration, International 
Trade Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-
0650 and (202) 482-3813, respectively.

SUPPLEMENTARY INFORMATION:

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 (URAA). In addition, unless otherwise 
indicated, all citations to Department of Commerce (the Department) 
regulations are to the regulations provided in 19 CFR part 351, as 
published in the Federal Register on May 19, 1997 (62 FR 27296).

Background

    This review covers the following producers/exporters of merchandise 
subject to the antidumping duty order on canned pineapple fruit from 
Thailand: Siam Food Products Public Company Ltd. (SFP); The Thai

[[Page 43662]]

Pineapple Public Company, Ltd. (TIPCO); Thai Pineapple Canning Industry 
Corp., Ltd. (TPC); Malee Sampran Factory Public Company Ltd. (Malee); 
The Prachuab Fruit Canning Co. Ltd. (Prachuab); Siam Fruit Canning 
(1988) Co. Ltd. (SIFCO); and Vita Food Factory (1989) Ltd. (Vita). On 
April 9, 1998, the Department published the preliminary results of this 
review. See Notice of Preliminary Results and Partial Rescission of 
Antidumping Duty Administrative Review: Canned Pineapple Fruit From 
Thailand, 63 FR 17357 (Preliminary Results). On June 8, 1998, we 
received case briefs from: (1) Maui Pineapple Co. Ltd. and the 
International Longshoremen's and Warehousemen's Union (collectively, 
the petitioners); (2) all respondents listed above except for Prachuab 
and Vita; 1 (3) U.S. importers Heartland Foods Inc., J.A. 
Kirsch Corp., Mandi Foods, Inc., North East Marketing Co., Port Royal 
Sales, Ltd., and Summit Import Corp. (collectively, Heartland et al.); 
and (4) U.S. importer UniPro Foodservice, Incorporated (UniPro). On 
June 15, 1998, we received rebuttal briefs from the petitioners, Malee, 
TIPCO, TPC, and from Heartland et al.
---------------------------------------------------------------------------

    \1\ We received comments from SIFCO on May 29, 1998, in addition 
to its June 8, 1998 submission. All dates referenced for documents 
submitted by SIFCO are the dates on which the particular document 
was certified as received by the Department, which differ from the 
dates listed on the cover page of these documents.
---------------------------------------------------------------------------

Scope of Review

    The product covered by this review is canned pineapple fruit (CPF). 
CPF is defined as pineapple processed and/or prepared into various 
product forms, including rings, pieces, chunks, tidbits, and crushed 
pineapple, that is packed and cooked in metal cans with either 
pineapple juice or sugar syrup added. CPF is currently classifiable 
under subheadings 2008.20.0010 and 2008.20.0090 of the Harmonized 
Tariff Schedule of the United States (HTSUS). HTSUS 2008.20.0010 covers 
CPF packed in a sugar-based syrup; HTSUS 2008.20.0090 covers CPF packed 
without added sugar (i.e., juice-packed). Although these HTSUS 
subheadings are provided for convenience and for customs purposes, our 
written description of the scope is dispositive.

Duty Absorption

    On February 12, 1998, the petitioners requested that the Department 
investigate the extent to which duty absorption has occurred in this 
review. As we stated in the Preliminary Results (63 FR at 17358), 
section 351.213(j)(1) of our regulations provides that we will 
determine whether antidumping duties have been absorbed by an exporter 
or producer subject to the review if requested by a domestic interested 
party within 30 days of the date of publication of the notice of 
initiation. Because the petitioners' request was untimely filed, we did 
not investigate the occurrence of duty absorption in this review. We 
received no comments on this aspect of our preliminary results.

Partial Rescission of Antidumping Duty Administrative Review

    On October 6, 1997, Dole Food Company Inc., Dole Packaged Foods 
Company and Dole Thailand Ltd. (collectively, Dole) withdrew its 
request for a review. Because there was no other request for a review 
of Dole, and because Dole's letter withdrawing its request for a review 
was timely filed, we are rescinding the review with respect to Dole in 
accordance with 19 CFR 351.213(d)(1). See Preliminary Results, 63 FR at 
17357. No parties commented on this issue for the final results.

Fair Value Comparisons

    We calculated export price (EP), constructed export price (CEP) and 
normal value based on the same methodology used in the preliminary 
results with the following exceptions. Where applicable, we have cited 
to the relevant interested party comment; otherwise, we address these 
changes further in the company-specific final analysis memoranda.

SFP

    We deducted international freight expenses for U.S. sales on which 
this expense was incurred.

TPC

    1. We added to normal value an amount for bank fees incurred in 
Thailand after converting it from Thai baht. See TPC Comment 5, below.
    2. We converted TPC's reported inventory carrying costs from Thai 
baht before adding it to TPC's dollar-denominated indirect selling 
expenses to create the variable INDH2BHT. See TPC Comment 4 below.
    3. We corrected an erroneous exchange rate conversion of the 
variable ISEL2COP.
    4. For EP sales, we corrected certain programming language 
regarding our use of contract date as the date of sale for purposes of 
the margin calculation.
    5. We corrected an exchange-rate conversion error on TPC's 
commissions on comparison market sales.
    6. We corrected errors reported by TPC to information related to 
U.S. sales observations 130 and 145.

SIFCO

    1. We adjusted the per-unit price of U.S. sales invoice SFC-524/
1996 based on findings at verification.
    2. We converted inventory carrying cost and commission expenses to 
Thai baht.

Prachuab

    We corrected exchange-rate conversion errors on bank charges, 
indirect selling expenses, commissions and credit on Prachuab's 
comparison market sales and on bank charges on its U.S. sales.

Cost of Production

    In accordance with section 773(b)(3) of the Act, we calculated the 
weighted-average cost of production (COP), by product, based on the sum 
of each respondent's costs of materials, fabrication, general expenses 
and packing costs. We calculated the COP based on the same methodology 
used in the preliminary results with the following exceptions:

Malee

    We adjusted Malee's interest expense (see Malee Comment 2, below). 
We adjusted general and administrative (G&A) expense to correct a 
double-counting error.

TIPCO

    We recalculated the cost of goods sold figure used in determining 
TIPCO's G&A ratio. See TIPCO Comment 1, below.

SIFCO

    We adjusted the following cost variables to account for corrections 
at verification: sugar, fresh fruit, acid, direct labor, variable 
overhead, fixed overhead, cans and lids, packing and tax rebates.

Prachuab

    We calculated Prachuab's fruit costs based on the net realizable 
value (NRV) methodology.

Analysis of Comments Received

    We gave interested parties an opportunity to comment on the 
preliminary results. As noted above, we received comments and rebuttal 
comments from the petitioners, five of the respondents, and domestic 
interested parties.

General Issues

Fruit Cost Allocation

    SFP and TIPCO contend that the Department improperly used a net 
realizable value (NRV) methodology to allocate fruit costs to calculate 
COP and

[[Page 43663]]

constructed value (CV). The respondents state, first, that the Court of 
Appeals for the Federal Circuit (CAFC) ruled in IPSCO, Inc. v. United 
States, 965 F.2d 1056 (Fed. Cir. 1992) (IPSCO) that value-based 
allocations of costs shared by co-products are not allowed under the 
antidumping law. Second, the respondents argue that the IPSCO ruling 
was applied specifically to this case by the Court of International 
Trade (CIT) in Thai Pineapple Public Co., Ltd. v. United States, 946 F. 
Supp. 11 (CIT 1996) (TIPCO), where the CIT ruled in an appeal of the 
Department's final determination in the underlying investigation that 
IPSCO applies to allocation of fruit costs.
    Regarding the specific cost allocation methodology to be used in 
place of the NRV methodology, the respondents state that they included 
weight-based fruit cost allocations in their section D response that 
are consistent with those reported by certain mandatory respondents in 
the original investigation and later adopted by the Department in the 
remand proceedings stemming from the less-than-fair-value 
investigation.
    The petitioners respond that the Department's use of the NRV 
methodology in the preliminary results was correct and should not be 
replaced with invalid weight-based allocations for the final results. 
With respect to the validity of the NRV methodology, the petitioners 
claim that: (1) it reasonably reflects the significantly different 
quality of the fruit parts used in the production of CPF versus those 
used in the production of juice products; and (2) IPSCO does not 
invalidate this methodology, since it involved the allocation of costs 
between two grades of merchandise that were physically identical, 
including identical inputs, except in quality and in market value. The 
petitioners argue that IPSCO did not indicate that use of a value-based 
allocation methodology was legally impermissible but, rather, that the 
courts will defer to the Department's preference for reliance on a 
respondent's normal allocation methodology where appropriate, 
particularly when there are significant differences in the raw 
materials.
    With respect to the validity of the weight-based methodologies 
submitted by SFP and TIPCO, the petitioners state that these 
allocations: (1) do not reflect the historical fruit cost allocations 
used by these companies; and (2) do not reasonably reflect the costs 
associated with the production of canned pineapple fruit because they 
fail to incorporate any measure of the qualitative factor of the 
different parts of the pineapple. For these reasons, the petitioners 
claim, such methodologies do not meet the statutory requirements set 
forth in section 773(f)(1)(A) of the Act.
    DOC Position: Consistent with past segments of this proceeding, we 
have continued to allocate raw fruit costs incurred by SFP and TIPCO 
using an NRV methodology, which reasonably reflects qualitative 
differences that exist between the joint raw materials used to produce 
CPF and juice. 2 In the less-than-fair-value investigation 
involving this case (Final Determination of Sales at Less Than Fair 
Value: Canned Pineapple Fruit from Thailand, 60 FR 29553, 29559-62 
(June 5, 1995) (LTFV Final Determination)), we rejected the 
respondents' arguments that we should disregard fruit costs as recorded 
in their normal books and records in favor of fruit costs calculated 
based on the relative weight of the fruit contained in CPF versus juice 
products. 3 In the Notice of Final Results of Antidumping 
Duty Administrative Review: Canned Pineapple Fruit From Thailand, 63 FR 
7392 (February 13, 1998) (1995-96 Final Results), we determined that, 
while certain respondents had replaced their historical fruit cost 
allocation methodologies with weight-based allocation methodologies, 
such allocations were inappropriate because they did not incorporate 
any measure of the qualitative factor of the different parts of the 
pineapple, and therefore did not reasonably reflect the costs 
associated with production of canned pineapple fruit. See 1995-96 Final 
Results, 63 FR at 7398.
---------------------------------------------------------------------------

    \2\  In addition to SFP and TIPCO, we have used an NRV 
methodology for all companies in this review based on sales and 
separable costs for 1990-94 period, with the exception of Malee. 
Because Malee already allocates fruit costs on a basis that 
reasonably takes into account qualitative differences between 
pineapples parts used in CPF versus juice products in its normal 
accounting records, we have not required Malee to recalculate its 
reported costs using the NRV methodology. See Preliminary Results, 
63 FR at 17360-17361.
    \3\  As noted by SFP and TIPCO, this aspect of the LTFV Final 
Determination was overturned by the CIT in TIPCO and is currently on 
appeal before the CAFC.
---------------------------------------------------------------------------

    For the same reasons as those provided in the above determinations, 
we continue to reject the use of a weight-based allocation methodology 
in this review. As we stated in the 1995-96 Final Results, a reasonable 
fruit cost allocation methodology is one that reflects the 
significantly different quality of the fruit parts that are used in the 
production of CPF versus those used in the production of juice 
products. An allocation methodology based on NRV data recognizes these 
differences.
    We disagree with the respondents' arguments that the CAFC ruled in 
IPSCO that value-based cost allocations are unlawful. In that case, the 
Department allocated costs equally between two grades of pipe, 
reasoning that because they were produced simultaneously, the two 
grades of pipe in fact had identical production costs. While the CAFC 
noted, in deferring to the Department's ``consistent and reasonable 
interpretation of section 1677b(e),'' that the allocation of costs 
based on relative value resulted in an unreasonable circular 
methodology (i.e., because the value of the pipe became a factor in 
determining cost, which became the basis for measuring the fairness of 
the selling price of pipe), nowhere did the appellate court indicate 
that use of an allocation methodology based on relative value was 
legally impermissible. IPSCO, 965 F.2d at 1061. On the contrary, IPSCO 
suggests that the courts will defer to the Department's preference for 
reliance on a respondent's normal allocation methodologies, 
particularly when there are significant differences in the raw 
materials. Thus, our reasoning in the instant case (i.e., that the use 
of the pineapple cylinder in production of CPF and the use of the 
shells, cores, and ends in production of juice and concentrate, 
requires a value-based allocation) is fully consistent with IPSCO.

Company-Specific Issues

Vita

Use of Adverse Facts Available for Vita
    U.S. importers Heartland et al. and UniPro submitted comments 
addressing the following alleged errors in the application of adverse 
facts available to Vita in the preliminary results: (1) the margin 
assigned to Vita fails to reflect the amended final determination in 
the underlying investigation (see Comment 2A, below); (2) the 
assignment of an adverse rate to Vita is inappropriate because the 
company acted to the best of its ability (Comment 2B); (3) the 
preliminary margin assigned to Vita is not ``representative'' because 
it does not reflect current market conditions (Comment 2C); (4) the 
rate applied to Vita for the purposes of the preliminary results cannot 
be corroborated (Comment 2D); and (5) the antidumping law should not be 
administered in a manner that would cause unjust and unwarranted harm 
to U.S. companies (Comment 2E).
    Comment 2A: The Use of a Facts Available Rate from the Final 
Determination Instead of the Amended Final Determination--Heartland et 
al. and UniPro argue that the 55.77 percent margin assigned to Vita 
(based on the

[[Page 43664]]

rate calculated for Siam Agro Industry Pineapple & Others Public 
Company Ltd. (SAICO) in the underlying investigation) reflects a rate 
that was subsequently reduced to 51.16 percent after certain clerical 
errors were corrected in the amended LTFV determination in this case 
(Notice of Antidumping Duty Order and Amended Final Determination: 
Canned Pineapple Fruit From Thailand, 60 FR 36775 (July 18, 1995)). 
Therefore, they assert, if the Department decides to use the SAICO rate 
in the final results, the correct rate should be 51.16 percent from the 
amended final determination.
    The petitioners agree with Heartland et al. and UniPro on this 
point.
    DOC Position: We agree that the amended final rate is the correct 
rate and have used it for the purposes of these final results.
    Comment 2B: Assignment of an Adverse Rate--Heartland et al. argue 
that the Department's assignment of an adverse rate to Vita is 
inappropriate because the company acted to the best of its ability. 
Instead, these companies maintain, the Department should base Vita's 
rate on the ``all others'' rate from the investigation.
    Heartland et al. state that section 776(a) of the Act lists 
specific instances in which the Department must determine dumping 
margins on the basis of facts available. According to Heartland et al., 
the Department is permitted, but not required, to use an inference that 
is adverse to the interests of a party only if that party has been 
deemed uncooperative due to a failure to act to the best of its 
ability. Heartland et al. assert that, in the preliminary results, the 
Department merely quoted the antidumping statute with regard to the use 
of adverse facts available, and made no factual finding that Vita was 
uncooperative due to a failure to act to the best of its ability. In 
this regard, Heartland et al. cite Borden Inc., et al. v. United 
States, Slip Op. 98-36 at 74 (CIT, March 26, 1998) for the proposition 
that the Department must make a specific factual finding of non-
cooperation, as opposed to simply quoting section 776 of the Act. 
Heartland et al. maintain that such a finding must be made on the basis 
of substantial evidence on the record before the Department can resort 
to the use of adverse facts available.
    As evidence that Vita acted to the best of its ability, Heartland 
et al. point out that Vita provided a timely response to sections A 
through C of the Department's questionnaire. In this respect, Heartland 
et al. contend that Vita's position in this review is analogous to that 
of SNFA, the foreign manufacturer in Allied-Signal Aerospace v. United 
States, 28 F.3d 1188 (Fed. Cir. 1994) (Allied-Signal), in which the 
CAFC found that SNFA had responded to the best of its ability even 
though it had been unable to provide the Department with all requested 
information. Upon remand SNFA was assigned a margin based on the ``all-
others'' rate. Heartland et al. maintain that, like SNFA, Vita 
submitted a substantial amount of information, but claim that factors 
outside Vita's control (three questionnaires in 25 days, loss of legal 
counsel, currency depreciation, and the Thai economic crisis), rather 
than ``deliberate recalcitrance,'' prevented it from providing a more 
complete response.
    The petitioners respond that, while any of the instances described 
in section 776(a) is a sufficient basis for facts available, Vita's 
voluntary termination of its participation involves three of these 
(i.e., withholding requested information, failing to provide 
information within established deadlines, and significantly impeding a 
proceeding). Moreover, the petitioners state, the Department clearly 
made a fact-based finding that Vita was an uncooperative respondent, 
citing the chronology of events listed in the Preliminary Results (63 
FR at 17358) detailing the Department efforts to notify Vita directly 
of its obligations, along with Vita's failure to respond. The 
petitioners argue that, given the fact that Vita dismissed its counsel 
and dropped out of the review shortly after the petitioners filed a 
below-cost allegation with respect to Vita, an inference can be made 
that Vita realized that its margin would be above its deposit rate 
(which was based on the ``all others'' rate) if it provided the 
requested NRV data, noting that Vita and its counsel were well aware 
that the magnitude of the margins in this case has been driven by the 
NRV data submitted by the respondents. The petitioners further argue 
that, in order to be deemed cooperative, the respondent must remain 
cooperative throughout the review, and maintain that the courts have 
uniformly approved the use of facts available where respondents attempt 
to control the process to their benefit through a submission of 
piecemeal information (citing Pistachio Group of the Association of 
Food Industries v. United States, 671 F. Supp. 31, 40 (CIT 1987)).
    The petitioners state that, unlike the Allied-Signal case cited by 
Heartland et al., where the respondent in that case demonstrated that 
it was willing to respond but was unable to do so, there is no record 
evidence that Vita was unable to respond. On the contrary, the 
petitioners argue, Vita acknowledged in a September 25, 1997, letter to 
the Department (at 2) that it ``maintained all of the sales data'' 
requested by the Department. As to the purported reasons for Vita's 
inability to respond to the questionnaire, the petitioners point out 
that the other respondents were also dealing with the same economic 
conditions and they all participated in this review, two of them doing 
so without counsel.
    Finally, the petitioners contend that they specifically requested a 
review of Vita based on information that the current margin applicable 
to Vita was not indicative of current market conditions, and argue that 
Vita's failure to cooperate has affirmed that the petitioners were 
correct. Therefore, they submit, the Department may not reward Vita's 
non-participation by continuing to apply the ``all others'' rate as 
suggested by Heartland et al.
    DOC Position: We disagree with Heartland et al.'s assertion that no 
adverse inferences should be made in selecting Vita's facts available 
rate. Contrary to Heartland et al.'s assertions, our decision to rely 
on an adverse rate was grounded in a fact-based finding in the 
preliminary results that Vita had not cooperated to the best of its 
ability in this review, and not on a mere recitation of the statutory 
provisions concerning the use of facts available.
    As we explained in the preliminary results, Vita was given multiple 
opportunities to respond to the Department's request for information. 
As illustrated by the following sequence of events, we made repeated 
requests to obtain the information necessary for our analysis from 
Vita, but were ultimately unsuccessful in our efforts to gather such 
data. On January 8, 1998, counsel for Vita notified us that it had 
withdrawn its representation of and entry of appearance on behalf of 
Vita. On January 9, 1998, we contacted Vita to determine whether the 
company planned to continue as a respondent in this review. Vita 
notified the Department on January 12, 1998, that it planned to 
continue in this review. On January 20, 1998, we notified Vita that we 
had not received its response to our January 2, 1998, supplemental 
section A questionnaire. Vita notified the Department on January 22, 
1998, that it had no knowledge of the supplemental section A 
questionnaire. Because we initially issued the supplemental section A 
questionnaire to counsel for Vita prior to its withdrawal as Vita's 
representative, we sent another copy of the questionnaire directly to 
Vita on January 27, 1998, and requested that

[[Page 43665]]

Vita respond by February 4, 1998. We also provided Vita with 
instructions on how to file submissions with the Department, 
instructions for serving such submissions to interested parties, and an 
interested parties list for this review. On the same date, we sent a 
supplemental questionnaire for sections B and C directly to Vita by 
certified mail. On February 5, 1998, we again informed Vita that we had 
not received its response to the supplemental section A questionnaire. 
At the same time, we reminded Vita of the February 6, 1998, deadline 
for its responses to questionnaire section D (which we issued directly 
to the company on January 13, 1998), and its February 11, 1998 response 
to supplemental sections B and C questionnaire. Vita did not respond, 
nor did it provide any explanation as to why it was unable to do so.
    Unlike in Allied-Signal, Vita did not show a willingness to respond 
throughout the review, but simply ceased communicating. Section 
782(c)(1) of the Act requires that an interested party promptly notify 
the Department if it is unable to submit information in the form and 
manner requested, and that it provide a ``full explanation and 
suggested alternate forms'' in which it is able to provide the 
information. Because Vita, in not responding to our repeated requests 
for information, has failed to act to the best of its ability, we have 
applied adverse facts available in accordance with section 776(b) of 
the Act.
    Comment 2C : ``Representativeness'' of the Rate Selected--UniPro 
and Heartland et al. argue that the proposed margin is not 
representative of current market conditions, rendering it 
inappropriate. For example, UniPro states, the proposed facts available 
rate is more than nine times greater than the average margin for the 
six respondents for whom the Department calculated margins in this 
review. UniPro holds that the Department has previously rejected rates 
as unrepresentative in similar circumstances, citing Fresh Cut Flowers 
from Mexico: Final Results of Antidumping Duty Administrative Review, 
61 FR 6812, 6814 (February 22, 1996), where the Department rejected as 
facts available a margin that was ``out of proportion'' and where the 
respondent ``represented only a small fraction of the industry.'' 
Likewise, UniPro claims, SAICO's margin from the underlying 
investigation cannot be said to be representative of the industry nor 
relevant to or probative of current conditions. UniPro suggests that, 
given that the highest margin calculated for the preliminary results 
was 14.19 percent, and the average of all calculated margins was 6.13 
percent, it is highly unlikely that Vita would be able to compete in 
the U.S. market even if the Department applies the ``all others'' rate 
for the final results, much less the selected adverse facts available 
rate.
    The petitioners respond that the fact that the facts available rate 
used by the Department in the preliminary results is four times higher 
than the highest calculated rate for the instant review is irrelevant, 
considering that SIFCO's preliminary calculated rate of 14.19 percent 
is 14 times higher than Malee's preliminary calculated rate of 1.01 
percent.
    DOC Position: Our presumption is that the highest calculated margin 
for any company in any segment of the proceeding is reflective of 
current conditions, and that, had Vita been able to demonstrate that 
its margin was lower than the highest margin calculated for any company 
in any segment of the proceeding, it presumably would have done so. See 
Mitsuboshi Belting Ltd. v. United States, CIT Court No. 93-09-00640, 
Slip Op. 97-28 (March 12, 1997) (Mitsuboshi Belting) (CIT affirmed that 
the use of a margin drawn from the investigation ``reflects a common 
sense inference that the highest margin is the most probative of 
current margins because, if it were not so, the importer, knowing the 
rule, would have produced current information showing the margin to be 
less''). See also Rhone Poulenc, Inc. v United States, 899 F. 2d 1185 
(Fed. Cir. 1990) (Rhone Poulenc). Unlike Flowers from Mexico, the facts 
in this case do not overcome this presumption. In Flowers from Mexico, 
the highest calculated rate (264.43 percent for Florex) was determined 
to be unrepresentative of the industry because Florex's accumulated 
interest expenses from a separate line of business skewed its cost of 
production figures. Conversely, there is no record of evidence to 
suggest that SAICO's business practices differ from the rest of the 
Thai pineapple industry such that it is not unable. We further note 
that Florex's rate was considered so unusual that it was not included 
in the calculation of the ``all others'' rate. That SAICO's rate was 
included in the calculation of the ``all others'' rate in the LTFV 
investigation is a further indication that the company was considered 
to be representative of the pineapple industry. Accordingly, we find 
that SAICO's rate from the investigation has probative value.
    Comment 2D: Corroboration of the Rate Selected--Heartland et al. 
argue that the rate applied to Vita in the preliminary results cannot 
be used in the final results because the rate is not in accordance with 
section 776(c) of the Act, which requires the Department to corroborate 
secondary information used as adverse facts available. These companies 
point out that not only does the 55.77 percent margin assigned to Vita 
not reflect the publication of an amended final in the underlying 
investigation (as stated above), it does not reflect the Department's 
redetermination upon remand directed by the CIT in TIPCO, where in the 
Department reduced SAICO's rate to 26.92 percent. While Heartland et 
al. acknowledge that the Department has appealed TIPCO, they maintain 
that the CIT's decision in this case invalidates, or at least casts 
significant doubt upon the appropriateness of, the higher rate as a 
basis for adverse facts available. In support of their argument, 
Heartland et al. claim that, in D&L Supply Co. v. United States, 113 
F.3d 1220, 1221 (Fed. Cir. 1997) (D&L Supply Co.), the court found that 
the Department could not use a rate that has been vacated as erroneous 
as the basis for best information available (facts available). Finally, 
Heartland et al. contend that the 55.77 percent rate is not 
corroborated because there is no evidence suggesting that Vita is now 
selling CPF in the United States at dumping margins twice as high as 
previously estimated, referencing the company's historical rate of 
24.64, the ``all others'' rate.
    The petitioners respond that, as the Department stated in the 
Preliminary Results (63 FR at 17358), ``if the Department chooses as 
total adverse facts available a calculated dumping margin from a prior 
segment of the proceeding, it is not necessary to question the 
reliability of the margin for that time period.'' Therefore, the 
petitioners argue, the Department need not further corroborate such 
margins. The petitioners add that D&L Supply Co. does not apply in this 
instance because, unlike the ``invalidated'' rate in that case, the 
TIPCO ruling is on appeal and is not yet final.
    DOC Position: We agree with the petitioners that margins from other 
segments of the proceeding are by definition reliable sources. See, 
e.g., Extruded Rubber Thread from Malaysia; Final Results of 
Antidumping Duty Administrative Review, 63 FR 12752, 12753 (March 16, 
1998). Because the Department has filed an appeal and the CAFC has not 
yet ruled on the case, the CIT decision in TIPCO is not final and 
conclusive. Therefore, we may continue to assign a rate based on the 
NRV

[[Page 43666]]

methodology where appropriate, until such time as there is a final 
court decision not in harmony with the Department's position on this 
issue. For this reason, Heartland et al.'s reliance on D&L Supply Co. 
is premature. Absent evidence to the contrary, we consider SAICO's rate 
from the underlying investigation to be reliable and, as discussed in 
Comment 2C, above, to have probative value.
    Comment 2E: Effect of Adverse Facts Available on Importers--
Heartland et al. maintain that they imported from Vita with the 
knowledge that they would be liable for a cash deposit requirement of 
24.64 percent and that they could not foresee or prevent the 
circumstances that led to Vita being assigned a margin based on adverse 
facts available. Therefore, they argue that they should not be made 
victims of events beyond their control.
    UniPro adds that the facts available rate assigned to Vita would 
unduly punish importers, such as itself, who purchased from Vita, 
without encouraging compliance with the Department's information 
requests. UniPro points out that the petitioners did not request a 
review of UniPro nor did the Department request any information from 
UniPro during the review. Moreover, Unipro states, unlike the facts in 
Rhone Poulenc, in which the CIT discusses obligations of U.S. importers 
in the context of an affiliated importer,4 it does not 
control the information needed by the Department, nor does it maintain 
an ongoing commercial relationship with Vita, such that it would have 
been able to provide it or to pressure Vita into providing it.
---------------------------------------------------------------------------

    \4\ In Rhone-Poulenc, 889 F.2d at 1190, the Court stated that 
the Department ``fairly places the burden of production on the 
importer, which has in its possession the information capable of 
rebutting the agency's inference.''
---------------------------------------------------------------------------

    The petitioners respond that neither the statute nor the 
Department's regulations require the Department to consider injury or 
harm to U.S. importers of merchandise that has been found to be sold at 
less than fair value. Instead, the petitioners contend, the 
Department's responsibility is to measure the degree of dumping by the 
Thai exporters on a continuing basis, so as to alleviate and to offset 
the injury to the domestic industry. The petitioners argue further that 
the importers knew that the deposit rate could rise and that they 
knowingly assumed this liability when they chose to purchase canned 
pineapple fruit from Thailand rather than from the domestic industry. 
The petitioners claim that Heartland et al. and UniPro cannot now claim 
they are being injured as a result of their unilateral decision to 
purchase from the Thai exporters, simply because the Department is 
following its statutory authority to enforce U.S. trade laws.
    DOC Position: Section 737(b)(1) of the Act mandates that any 
antidumping duties in excess of the amount deposited be collected when 
the deposit is lower than the duty determined. Therefore, importers are 
on notice that the cash deposit rate is not a duty assessment rate but, 
rather, an estimate dependent upon the continued cooperation of the 
exporter. There is no guarantee that the final assessment rate will not 
be higher than the cash deposit rate. On this point, the CIT has held 
that the expectations of the U.S. importer are irrelevant in setting a 
dumping margin. ``When a U.S. importer deals with a foreign company 
that is subject to an antidumping duty order, the importer must realize 
that the dumping margin could change to its benefit or detriment.'' 
Union Camp Corporation v. United States, CIT Court No. 97-03-00483, 
Slip Op. 98-38 at 22 (March 27, 1998).

TPC

Comment 1: Date of Sale
    TPC argues that the Department erroneously based date of sale for 
TPC's EP sales on contract date, rather than invoice date, in the 
preliminary results. TPC presents three primary arguments as to why the 
Department should use invoice date as the date of sale, as follows.
    1. TPC asserts that use of contract date as the date of sale for 
TPC's EP sales is inconsistent with the Department's regulations (19 
CFR 351.401(i)), which TPC interprets as providing that invoice date is 
to be used not only where there are material changes between the date 
of contract and the date of invoice, but also where the potential for 
such change is present. While acknowledging that the date of sale 
regulation allows for a date other than invoice date where such date 
better reflects the date on which the material terms of sale are 
established, TPC contends that the cautionary language regarding this 
exception in the preamble to the Department's final regulations 
(Preamble) (e.g., ``a preliminary agreement on terms, even if reduced 
to writing, in an industry where renegotiation is common does not 
provide any reliable indication that the terms are truly `established' 
in the minds of the buyer and seller'' 5) renders the 
exception inappropriate under the facts of this case. According to TPC, 
the canned pineapple business is the type of industry where ``the 
existence of an enforceable sales agreement between the buyer and the 
seller does not alter the fact that, as a practical matter, customers 
frequently change their minds and sellers are responsive to those 
changes'' (citing the Preamble, 62 FR at 27348-49). Along these lines, 
TPC also notes that the non-invoice date of sale example provided in 
the Preamble concerns the sale of large, custom-made merchandise in 
which the parties engage in formal negotiation and contracting 
procedures.
---------------------------------------------------------------------------

    \5\ Antidumping Duties; Countervailing Duties; Final Rule, 62 FR 
27296, 27349 (May 19, 1997).
---------------------------------------------------------------------------

    As a further indication that, for the Thai pineapple industry in 
general, terms of sales contracts remain negotiable, TPC notes that in 
the instant review the Department has relied on invoice date as the 
date of sale for SFP, Malee and TIPCO in connection with

[[Page 43667]]

those respondents' EP sales. TPC maintains that there is nothing about 
its contracts that make them any more enforceable or any less 
renegotiable than similar contracts entered into by the other 
respondents. Further, TPC argues, given that the structure of its 
direct sales to the comparison market is very similar to the structure 
of its EP sales, and considering that the Department based date of sale 
on comparison market sales on invoice date (based on evidence of actual 
changes to the material terms of sale in that market), the potential 
for change similarly existed on TPC's EP sales contracts.
    2. TPC argues that the Department's use of the contract date as the 
date of sale is inconsistent with its current practice. According to 
TPC, the Department recently clarified in Certain Cold-Rolled and 
Corrosion Resistant Carbon Steel Flat Products From Korea: Final 
Results of Antidumping Duty Administrative Reviews, 63 FR 13170 (March 
18, 1998) (Flat Products From Korea) that the key to its date of sale 
analysis is whether the material terms of sale can change up until the 
invoice date, not whether any changes have actually occurred. TPC 
claims that there is no record evidence in the instant review to 
indicate that the terms could not be changed after the contract date--
only that for TPC's EP sales during the POR the terms did not change. 
In fact, TPC argues, in Flat Products From Korea, the Department did 
not discuss, nor does it appear that the respondent was required to 
demonstrate, the number of changes that occurred between contract date 
and invoice date for U.S. sales.
    3. TPC suggests that use of invoice date as date of sale would 
ensure fair price comparisons, promote consistency from one review to 
the next, and would enable TPC to accurately predict which normal value 
will ultimately be selected for comparison to individual U.S. sales. 
Along these lines, TPC claims that use of invoice date as the date of 
sale for its EP sales would be consistent with the date of sale for its 
CEP and comparison market sales, noting the Department's stated 
preference for comparing sales with dates of sale that are established 
on the same basis as stated in Small Diameter Circular Seamless Carbon 
and Alloy Steel Standard, Line and Pressure Pipe From Germany: 
Preliminary Results of Antidumping Duty Administrative Review, 62 FR 
47446 (September 9, 1997) (Seamless Pipe). Moreover, TPC claims, 
determining the date of sale based on an empirical examination of the 
actual number of changes that took place between the contract date and 
the invoice date during a particular POR--and possibly changing the 
basis for the date of sale from review to review--defeats two of the 
objectives of the new date of sale regulation: predictability of 
outcome and efficient use of the Department's resources. Otherwise, TPC 
claims, it will never be sure which date will ultimately be used by the 
Department in each new review unless and until a threshold number of 
changes occurs.
    The petitioners respond that the Department correctly based TPC's 
EP date of sale on the contract date, consistent with the first 
administrative review, since there were no changes made to the material 
terms after this date for such sales. The petitioners state that when 
the Department adopted its date of sale policy, where invoice date is 
identified as the ``normal'' date of sale, it did so with the 
understanding that under certain circumstances it may be appropriate to 
use some other date, as explained in, e.g., Memorandum for Acting 
Deputy Assistant Secretary from Team: Date of Sale in Circular Welded 
Non-Alloy Steel Pipe from the Republic of Korea; Final Results of 
Antidumping Duty Administrative Review, December 7, 1997.
    The petitioners contend that TPC's cite to Flat Products From Korea 
in an attempt to demonstrate that the key to the Department's date of 
sale analysis is whether the material terms of sale can change up until 
the invoice date is inaccurate. Whereas TPC states that there is no 
record evidence in the instant review to indicate that the terms could 
not be changed after the contract date, the petitioners state that the 
only record evidence available indicates that no changes occurred to 
the material terms of sale after the contract date. According to the 
petitioners, this is a compelling reason to use a date other that 
invoice date, and is fully consistent with Flat Products From Korea, 
where the Department said that its current practice ``is to use the 
date of invoice as the date of sale unless there is a compelling reason 
to do otherwise.'' See Flat Products From Korea, 63 FR at 13194.
    With respect to TPC's argument that, in Seamless Pipe, the 
Department found that the U.S. date of sale should be invoice date 
because use of the order confirmation date would mean comparing sales 
for which prices were not established in the same manner, the 
petitioners argue that the same rationale is precisely why the 
Department's use of contract date is correct in the instant review: 
this date represents the date when prices were established for all U.S. 
EP sales.
    The petitioners also address TPC's claims that if the Department 
focuses on whether a certain number of changes has actually occurred, 
instead of on whether such changes could occur, TPC would never be sure 
which sales it should look to in the comparison market to ascertain 
normal value. Instead, the petitioners claim, there is no guesswork 
involved because TPC established the terms of sale for all U.S. EP 
sales on the contract date, made no changes to price or quantity after 
that date, and knew from the prior administrative review that the 
Department considered these sales to have been established on the 
contract date.
    Finally, the petitioners state, given the severe and drastic 
devaluation of the

[[Page 43668]]

Thai currency, use of the invoice date in the current and in future 
reviews of this order would artificially distort the actual extent of 
dumping because an exchange rate that is significantly lower than it 
was when the U.S. price was contractually set would be used in the 
conversion of normal value. Because TPC negotiated and established a 
U.S. price on the date of the contract, the petitioners argue, the 
Department's date of sale methodology should not be changed for the 
final results.
    DOC Position: As in the prior review, we have continued to base 
TPC's EP sales on contract date. The record evidence in this segment of 
the proceeding indicates that the material terms of sale were 
established in the contracts that TPC entered into for such sales, and 
that such terms never varied after the contract date.
    In determining in the 1995-96 review to base EP sales on contract 
date, we considered, and rejected, TPC's arguments that the 
Department's regulations and preamble require a different result:

    The general presumption in favor of invoice date continues to be 
our normal practice. As explained in the preamble to the 
Department's final regulations, ``in the Department's experience, 
price and quantity are often subject to continued negotiation 
between the buyer and seller until a sale is invoiced.'' See 
Antidumping Duties; Countervailing Duties, 62 FR 27296, 27348 (May 
19, 1997)(``Final Regulations'') at 27348. However, this presumption 
applies ``absent satisfactory evidence that the terms of sale were 
finally established on a different date.'' Id. at 27349. This caveat 
reflects an awareness that, ``[i]n some cases, it may be 
inappropriate to rely on the date of invoice as the date of sale, 
because the evidence may indicate that, for a particular respondent, 
the material terms of sale usually are established on some date 
other than the date of invoice.'' Id. (emphasis added). Accordingly, 
``[i]f the Department is presented with satisfactory evidence that 
the material terms of sale are finally established on a date other 
than the date of invoice, the Department will use that alternative 
date as the date of sale.'' Id. (emphasis added). For these reasons, 
while section 351.401(i) maintains the general presumption in favor 
of invoice date, it provides for the use of a different date of sale 
where the alternative date ``better reflects the date on which the 
exporter or producer establishes the material terms of sale.''

    Thus, while section 351.401(i) of our regulations maintains the 
general preference in favor of the use of invoice date as the date of 
sale, it does not, as TPC suggests, require such use wherever there is 
any possibility for changes to the material terms of sale up to that 
date. If the invoice date does not reasonably approximate the date on 
which the material terms of sale were established, its use as the date 
of sale in an antidumping analysis is inappropriate. The evidence on 
the record indicates that there were in fact no changes to the 
contracted terms of TPC's EP sales during the POR. Accordingly, 
consistent with our current practice (see, e.g., Stainless Steel Bar 
from India: Preliminary Results of New Shipper Antidumping Duty 
Administrative Review, 63 FR at 3536, 3537 (January 23, 1998)) 
6 as well as with the prior review of TPC's sales (1995-96 
Final Results, 63 FR at 7394), we determined that contract date is the 
appropriate date of sale for TPC's EP sales.
---------------------------------------------------------------------------

    \6\ Our decision to use the purchase order date as the 
appropriate date of sale in that case was explained in the 
preliminary results. However, no change in this decision was made 
for the final results.
---------------------------------------------------------------------------

    We disagree with TPC's contention that the uniform use of invoice 
date as date of sale would ensure fair price comparisons. On the 
contrary, the only dates that are substantively equivalent for purposes 
of measuring price discrimination are the contract date for EP sales 
and the invoice date for comparison market sales; although different in 
name, these are the respective dates at which the material terms of 
sale were established.
    Our reasons for not simply basing date of sale on invoice date 
across all markets, where such date does not reflect the material terms 
of sale, were addressed in a recent determination involving Circular 
Welded Non-Alloy Steel Pipe From the Republic of Korea; Final Results 
of Antidumping Duty Administrative Review, 63 FR 32833, 32836 (June 16, 
1998), as follows:

    If we were to use invoice date as the date of sale for both 
markets, we would effectively be comparing home market sales in any 
given month to U.S. sales whose material terms were set months 
earlier--an inappropriate comparison for purposes of measuring price 
discrimination in a market with less than very inelastic demand. 
Notwithstanding the respondent's comment that the terms of sale are 
subject to change and that, therefore, the final terms are not known 
until the date of invoice, we find that, in this case, there is no 
information on the record indicating that the material terms of sale 
change frequently enough on U.S. sales so as to give both buyers and 
sellers any expectation that the final terms will differ from those 
agreed to in the contract.

    In that case, as in the 1995-96 Final Results, the Department 
relied on contract date as the date of sale for U.S. sales other than 
CEP sales out of inventory based on the reasons set forth above.
    We also disagree with TPC that it has been unfairly penalized 
because it is not able to predict, from review to review, which date of 
sale the Department will choose. In fact, TPC has been well aware of 
our practice in this regard for each of the two reviews of this case, 
and our stated preference for contract date where virtually no post-
contractual changes are made has remained in place during both reviews. 
TPC acknowledged early on in the first review that the Department might 
find contract date to be the appropriate date of sale where the 
material terms of sale where established at the contract date for 
virtually all sales in a given market. See 1995-96 Final Results, 63 FR 
at 7394-7395. In that review, we relied on contract date for EP and 
comparison market sales, where changes were made to the contracted 
terms for only one EP sale and five comparison market sales (out of 
several hundred sales made in each market). Id. In this review, TPC 
provided evidence of routine post-contractual changes in the material 
terms of sale for third-country sales; accordingly, we agreed with the 
company that invoice date was appropriate for this market. 7 
In contrast, the company indicated that no EP sales had post-
contractual changes during the POR. Given the complete absence of POR 
changes, and our use of contract date for EP sales in the first review 
where the same company had only one post-contractual change on such 
sales, the use of contract date for EP sales in this review is 
consistent and predictable. Finally, given the precedent established in 
this case, we are not persuaded by TPC's claim that it was unable to 
predict the correct date of sale due to purported inconsistencies in 
the Department's treatment of date of sale issues in other cases.
---------------------------------------------------------------------------

    \7\ The frequency and the reasons for changes in contractual 
terms are discussed in the business proprietary version of TPC's 
October 22, 1997 questionnaire response (at 28) and in its January 
20, 1998 supplemental questionnaire response (at 4).
---------------------------------------------------------------------------

Comment 2: Interest Calculation
    The petitioners argue that the Department should exclude foreign 
exchange gains from TPC's net interest calculation because it is 
unclear and unsubstantiated from TPC's response that these gains are 
related to TPC's production rather than to sales functions. According 
to the petitioners, it is the Department's practice to include foreign 
exchange gains and losses on financial assets and liabilities in its 
calculations of COP and CV only where those gains and losses are 
related to the company's production. This standard, the petitioners 
assert, was not met with respect to the gains at issue because TPC did 
not substantiate its claim that, after excluding certain

[[Page 43669]]

exchange gains and losses associated with interest arbitrage and 
investment activities, the remaining exchange gains are attributable to 
operations, as opposed to sales. 8 In fact, the petitioners 
state, such gains may be attributable to accounts receivable. In this 
respect, the petitioners note that the Department disallowed certain 
gains related to accounts receivable made by another respondent in the 
first review of this case, citing 1995-96 Final Results, 63 FR at 7401.
---------------------------------------------------------------------------

    \8\ The petitioners note that TPC, in its October 22, 1997 
section D questionnaire response (at 45), claims merely that these 
exchange gains are ``attributed to operations.''
---------------------------------------------------------------------------

    TPC responds that the Department should not exclude foreign 
exchange gains and losses from its net interest calculation, labeling 
as speculation the petitioners' argument that these foreign exchange 
gains might include gains on export sales. Rather than point to record 
evidence, TPC argues, the petitioners relied instead on the observation 
that, for other companies, the Department has on occasion adjusted 
interest expense to disallow foreign exchange gains on receivables. TPC 
notes that the petitioners did not ask that the Department request 
additional information from TPC regarding exchange gains and losses 
after the company submitted its response to section D of the 
Department's questionnaire. Finally, TPC states that its calculation of 
foreign exchange gains and losses in this review closely tracks the 
methodology that was verified and accepted in the prior review.
    DOC Position: We disagree with the petitioners' assertion that 
TPC's reported exchange rate gains should be disallowed. Our practice 
is to include foreign exchange gains as an offset to finance expenses 
if they are related to the cost of acquiring debt for purposes of 
financing production operations, and to exclude this item if it relates 
to sales. See Notice of Final Determination of Sales at Less Than Fair 
Value: Certain Steel Concrete Reinforcing Bars from Turkey (Rebar from 
Turkey), 62 FR 9737, 9741 (March 4, 1997). More specifically, we 
include in COP and CV the amortized portion of net foreign exchange 
gains and losses resulting from foreign-currency denominated loans as a 
part of the financial expenses because they reflect the actual amount 
of local currency that will have to be paid to retire the foreign-
currency denominated loan balances. See, e.g., Notice of Final 
Determination of Sales at Less Than Fair Value: Fresh Atlantic Salmon 
from Chile, 63 FR 31411, 31430 (June 9, 1998) (Salmon from Chile). On 
the other hand, we do not consider exchange gains and losses from sales 
transactions to be related to the manufacturing activities of the 
company and we do not include them in the financial expense 
calculation. See id.; see also Notice of Final Determination of Sales 
at Less Than Fair Value: Steel Wire Rod from Trinidad and Tobago, 63 FR 
9177, 9181 (February 24, 1998). In its financial expenses rate 
calculation, TPC identified exchange gains attributable to debt and 
exchange gains attributable to combined other operations (i.e., sales 
and purchase transactions combined). Accordingly, we were able to 
determine that TPC properly excluded from its calculation exchange 
gains attributable to ``other operations.''
    While we are not disallowing this offset based on the arguments set 
forth by the petitioners, we adjusted it to reflect our practice 
regarding the amortization of such gains. In its submitted financial 
expense calculation, TPC included the total net exchange gains and did 
not amortize its net exchange gains related to loans. For purposes of 
our analysis, it is appropriate to amortize the foreign exchange gains 
or losses over the life of the associated debt, as the gain or loss is 
realized only as the loans are paid. See, e.g., Notice of Final Results 
and Partial Rescission of Antidumping Duty Administrative Review: 
Certain Welded Carbon Steel Pipe and Tube From Turkey, 63 FR 35190, 
35199 (June 29, 1998) (Pipe and Tube From Turkey). Therefore, for these 
final results, we amortized the net foreign exchange gains related to 
loans reported in TPC's financial statements over the average remaining 
life of the loans on a straight-line basis. We included the amortized 
portion of the net exchange gains in the recalculation of financial 
expenses. This adjustment did not change the net interest expense 
reported by TPC. Due to the proprietary nature of this issue, it is 
discussed in more detail in the Memorandum from Case Analyst to Office 
Director: Final Results Analysis Memorandum for The Thai Pineapple 
Canning Industry Corp., Ltd. (TPC) (August 7, 1998) (TPC Final Results 
Analysis Memorandum).
    Finally, we note that we confirmed through our review of TPC's 
financial statements in connection with this issue that TPC does not 
have any assets that would generate long-term interest income. It is 
the Department's practice to allow a respondent to offset financial 
expenses with short-term interest income earned from the general 
operations of the company. See, e.g., Pipe and Tube From Turkey, 63 FR 
at 35199. The Department does not offset interest expense with interest 
income earned on long-term investments because long-term investments do 
not relate to current operations. Id.
Comment 3: G&A Expense Calculation
    The petitioners claim that TPC's reported G&A expenses are 
understated for two reasons. First, they are allegedly inconsistent 
with TPC's 1996 financial statements. Due to the proprietary nature of 
this comment, it is discussed in more detail in the TPC Final Results 
Analysis Memorandum.
    Second, the petitioners claim that TPC failed to include G&A 
expenses incurred by Princes, an affiliated party located in the 
Netherlands that resells the foreign like product in the comparison 
market (Germany). In this regard, the petitioners note that the 
Department's section D questionnaire (at 53) instructed TPC to 
``include in your reported G&A expenses an amount for administrative 
services performed on your company's behalf by its parent company or 
other affiliated party.'' The petitioners claim that, because Princes 
is involved in the sale of the foreign like product in TPC's third-
country market, Princes' G&A expenses should be included.
    TPC disagrees with the petitioners' contention that the 
Department's questionnaire instructed TPC to include Princes' expenses 
in the G&A calculation. Instead, TPC states, the Department's 
instruction is intended to cover a situation where the normal 
administrative functions of an exporter/producer (e.g., the financial 
department or senior management functions) are provided by an 
affiliated party, such as a parent corporation. TPC suggests that this 
is to alleviate any concern that such services are provided without 
charge or at below market rates, and is not intended to cover 
situations in which affiliated resellers are performing a sales 
function in other markets. In this regard, TPC states that, because 
Princes acts as a sales office, its expenses are selling expenses, 
which are reported in the sections B and C sales responses, whereas 
TPC's G&A expenses are reported in the section D cost response. 
Furthermore, TPC argues, because selling expenses incurred by Princes 
are already deducted from the gross price of comparison market sales in 
determining the net price used for the cost test, including Princes' 
expenses in TPC's G&A would constitute double-counting of such 
expenses.
    DOC Position: Due to the proprietary nature of the petitioners' 
assertion that TPC's reported G&A expenses are inconsistent with its 
1996 financial statements, we address the claim further

[[Page 43670]]

in the TPC Final Results Analysis Memorandum.
    Regarding expenses incurred by Princes, we disagree with the 
petitioners' claim that TPC inappropriately excluded such expenses from 
its G&A calculation. Where an affiliate's costs pertain to reselling 
the merchandise to unaffiliated customers, it is our practice to treat 
such expenses as selling expenses. See, e.g., Tapered Roller Bearings 
and Parts Thereof, Finished and Unfinished, From the People's Republic 
of China; Final Results of Antidumping Duty Administrative Review, 62 
FR 61276, 61287 (November 17, 1997).9 All of the expenses 
incurred by Princes were related to sales activities on behalf of TPC's 
comparison market sales. Princes operates a single sales office in the 
Netherlands, through which it sells canned and packaged foods, canned 
fruits, fish, meats, vegetables and pastas and sauces throughout Europe 
and to Japan. See TPC's October 22, 1997 questionnaire response at 12. 
The evidence on the record of this review indicates that TPC correctly 
included Princes' expenses in its indirect selling expense calculation. 
See Exhibit B-8 of TPC's October 22, 1997, questionnaire response. For 
these reasons, consistent with the prior review of this case, we have 
treated these expenses as selling expenses.10
---------------------------------------------------------------------------

    \9\ We determined that labor expenses incurred by a respondent's 
U.S. affiliate were related to selling the merchandise to the first 
unaffiliated customer in the United States and were not related to 
production. Therefore, we deducted such expenses from the starting 
price on CEP sales rather than including the expenses in the COP.
    \10\ See Memorandum to Director, Office of Accounting From 
Senior Accountant: Cost of Production and Constructed Value 
Memorandum for Preliminary Results; Antidumping Duty Administrative 
Review, Canned Pineapple Fruit from Thailand, Thai Pineapple Canning 
Industry Corp. Ltd. ( July 31, 1997). We calculated TPC's G&A using 
only TPC's administrative expenses.
---------------------------------------------------------------------------

Comment 4: Comparison Market Indirect Selling Expenses
    TPC claims that the Department incorrectly excluded domestic (Thai) 
inventory carrying costs (DINVCART) in calculating comparison market 
indirect selling expenses.
    The petitioners respond that the Department properly excluded this 
expense in the calculation of third-country selling expenses, just as 
it properly excluded Thai inventory carrying costs from the calculation 
of U.S. indirect selling expenses. The petitioners assert that this 
expense is not related either to economic activities in the third-
country or U.S. markets, and therefore should be treated the same in 
the normal value and CEP calculations.
    DOC Position: We agree with TPC that we mistakenly omitted 
inventory carrying costs incurred in Thailand when calculating 
comparison market indirect selling expenses. The petitioners' reference 
to restricting indirect selling expenses to ``economic activities 
occurring in the United States or in the third country market'' is 
overly broad, since we do not apply this standard to third-country 
indirect selling expenses, only to CEP selling expenses. In calculating 
the CEP, we deduct from the starting price expenses (and profit) 
associated with economic activities occurring in the United States that 
relate to the sale to the unaffiliated purchaser. See TPC Comment 5, 
below. We do not place a corresponding limitation on comparison market 
selling expenses, but instead cap such expenses (to the extent that we 
adjust for them, as a CEP offset), by the amount of indirect selling 
expenses deducted in calculating the CEP. See 19 CFR 351.412(f)(2).
Comment 5: U.S. Direct Selling Expenses Incurred in Thailand
    TPC claims that, for CEP comparisons, the Department erroneously 
both: (1) added U.S. direct selling expenses incurred in Thailand 
(DDIRSELU) to normal value, and (2) subtracted them from the gross U.S. 
price.
    While the petitioners agree with this assertion, they claim that 
the Department failed to add U.S. warranty expenses to normal value for 
EP comparisons.
    DOC Position: Regarding our treatment of U.S. direct selling 
expenses incurred in Thailand, we have added such expenses to normal 
value for both CEP and EP comparisons. In calculating CEP, we deduct 
from the starting price expenses (and profit) associated with economic 
activities occurring in the United States 11 that relate to 
the sale to the unaffiliated purchaser. See 19 CFR 351.402(b). We do 
not adjust for any expense that is related solely to the sale to an 
affiliated importer in the United States. However, we may make a COS 
adjustment to normal value for such expenses. Id.
---------------------------------------------------------------------------

    \11\ See the SAA at 823 discussing section 772(d)(1) of the Act.
---------------------------------------------------------------------------

    The expenses reported under variable DDIRSELU are related to bank 
fees incurred by TPC in Thailand. Exhibit 7C of TPC's October 22, 1997 
questionnaire response clearly shows that these expenses were incurred 
on sales to MIC, TPC's U.S. affiliate. As explained above, such 
expenses may not be deducted from the starting price in calculating the 
CEP. Therefore, while we intended to add this expense to normal value 
as a COS adjustment, we have corrected the erroneous deduction from the 
starting price in the United States.
    We also agree with the petitioners' claim that any warranty 
expenses incurred by TPC with respect to its EP sales should be added 
to normal value as a COS adjustment.
Comment 6: Commission Offset
    The petitioners claim that the Department failed to make a 
commission offset for CEP comparisons involving home market commissions 
but no U.S. commissions. According to the petitioners, such an offset 
should be made as an upward adjustment to normal value, using the 
lesser of home market commissions or indirect selling expenses incurred 
in Thailand on U.S. sales. The petitioners note that, while U.S.-
incurred indirect selling expenses were deducted from the starting 
price in calculating the CEP, Thai-incurred indirect selling expenses 
were not.
    TPC responds that the Department's preliminary margin program is in 
this respect fully in accordance with the Department's current 
practice, and claims that the petitioners' proposal would incorrectly 
adjust for indirect selling expenses incurred in Thailand on sales made 
to TPC's affiliate in the United States, which is contrary to section 
772(d) of the Act and with Department practice. In this regard, TPC 
cites Certain Stainless Steel Wire Rods from France: Final Results of 
Antidumping Duty Administrative Review, 63 FR 30185, 30191 (June 3, 
1998) in support of the proposition that the Department ``does not 
deduct indirect selling expenses incurred in selling to the affiliated 
U.S. importer under section 772(d) of the Act.''
    DOC Position: We agree with the petitioners that a commission 
offset, based on the lesser of home market commissions or those 
indirect selling expenses incurred on U.S. sales that are not 
associated with economic activities in the United States, is 
appropriate for CEP comparisons involving commissions in the home 
market but not in the U.S. market. Contrary to TPC's claim, this would 
not involve the deduction from the U.S. starting price of indirect 
expenses not associated with economic activities in the United States. 
We have not deducted such expenses in arriving at the constructed 
export price, in accordance with section 772(d) of the Act and the SAA. 
However, having constructed an export price, it is appropriate to add 
such expenses to normal value as a commission offset for

[[Page 43671]]

comparisons involving home market commissions but no U.S. commissions, 
just as we would do so generally in an export price analysis. This in 
accordance with the Department's regulations, which preclude a downward 
adjustment to the U.S. starting price for such expenses in determining 
the CEP, but allow for a COS adjustment to normal value for such 
expenses, pursuant to section 773(a)(6)(C)(iii) of the Act. See 19 CFR 
351.402(b); see also 19 CFR 351.410(e) (``The Secretary normally will 
make a reasonable allowance for other selling expenses if the Secretary 
makes a reasonable allowance for commissions in one of the markets 
under considerations [sic], and no commission is paid in the other 
market under consideration.'').

TIPCO

Comment 1:
    The petitioners argue that the Department should recalculate 
TIPCO's G&A and interest expense ratios in accordance with the 
Department's normal practice.
    First, the petitioners claim that TIPCO has understated its actual 
G&A ratio because record evidence indicates that TIPCO calculated the 
ratio using an unconsolidated G&A expense amount as the numerator and 
what appears to be a consolidated cost of goods sold (COGS) amount as 
the denominator. The petitioners state that the Department should 
recalculate TIPCO's G&A ratio using the 1996 unconsolidated COGS amount 
from Exhibit 20 of TIPCO's October 20, 1997, questionnaire response.
    In addition, the petitioners argue that TIPCO failed to submit its 
1996 consolidated financial statements in accordance with the 
Department's instructions and, as a result, the Department cannot 
corroborate the reported 1996 consolidated interest expenses or the 
1996 consolidated cost of goods sold figures, which were used to 
calculate the reported interest expense ratio. Therefore, the 
petitioners suggest that the Department use, as facts available, 
TIPCO's 1995 consolidated financial statements to recalculate TIPCO's 
interest expense ratio.
    Finally, the petitioners argue that TIPCO improperly deducted an 
amount for foreign exchange gains from its 1996 interest expenses to 
arrive at its net interest expense ratio. According to the petitioners, 
deducting the exchange gain from the interest expense amount does not 
reflect the Department's policy since there is no evidence on the 
record to demonstrate that these exchange gains were related to TIPCO's 
production. The petitioners claim that in the prior review the 
Department excluded exchange gains from the net interest expense 
calculation when TIPCO failed to provide support for its claim that 
exchange gains were related to financing activities (citing 1995-96 
Final Results, 63 FR at 7401).
    TIPCO did not comment on the calculation of its G&A expense. 
Regarding the interest expense, TIPCO responds, first, that the 
petitioners' assertion that the Department cannot corroborate the 
interest expenses and COGS information appearing in TIPCO's 1996 
consolidated financial statements is incorrect, claiming that the 
information needed for corroboration is already on the record for this 
proceeding because the complete 1996 consolidated financial statements 
were submitted to the Department during the verification of the prior 
review. TIPCO adds that the information it submitted during the first 
review is part of the record for this review, noting that section 
357.104(a) of the Department's regulations provides that the Department 
maintains ``an official record of each antidumping and countervailing 
duty proceeding'' and that a ``proceeding'' as defined by the 
Department's regulations includes the time period covering multiple 
reviews.12 Accordingly, TIPCO claims, the Department should 
adhere in the final results to the interest expense calculation used in 
the preliminary results.
---------------------------------------------------------------------------

    \12\ TIPCO cites section 351.102(a) of the Department's 
regulations as stating that a proceeding ``begins on the date of 
filing a petition * * * and ends on the date of publication of the 
earliest notice of: (1) Dismissal of petition, (2) Revision of 
initiation, (3) Termination of investigation, (4) A negative 
determination that has the effect of terminating the proceedings, 
(5) Revocation of an order, or (6) Termination of a suspended 
investigation.''
---------------------------------------------------------------------------

    Second, regarding the exchange gain offset to interest expense, 
TIPCO maintains that in its supplemental questionnaire response it 
corrected its deduction of exchange gains from interest expenses for 
precisely the reason put forth by the petitioners, i.e., in light of 
the Department's finding in the final results of the prior review. 
Thus, TIPCO claims, its interest calculation is in accordance with the 
Department's decision in the prior review.
    DOC Position: Regarding TIPCO's reported G&A expense, we agree with 
the petitioners that the numerator and denominator were not calculated 
on the same basis. We have corrected the denominator in the manner 
suggested by the petitioners, to reflect a G&A ratio based on TIPCO's 
unconsolidated G&A expenses in relationship to its unconsolidated COGS. 
See Notice of Final Determination of Sales at Less Than Fair Value: 
Stainless Steel Wire Rod from Japan, 63 FR 40434, 40440 (July 29, 
1998).
    Regarding the petitioners' claims concerning TIPCO's reported 
interest expense, we have accepted this expense as reported for the 
following reasons. First, we disagree with the petitioners' assertion 
that TIPCO's reported 1996 interest expense and cost of goods sold 
amounts must be disallowed due to insufficient documentation. Based on 
the information provided by TIPCO in this case, as well as the absence 
of any evidence to call into question the reliability of these figures, 
we have accepted these items as reported, in accordance with our normal 
practice.
    In addition, we have allowed TIPCO's claimed exchange gain offset 
to interest expense. The amount that the petitioners assert was claimed 
as an offset reflects that reported in the initial response. 
Subsequently, TIPCO reduced its reported exchange gain to a minor 
fraction of that originally claimed, explaining that it was doing so in 
light of our treatment of the company's exchange gains and losses in 
the 1995-96 final results.13 We note that TIPCO made this 
reduction to its interest offset on its own initiative, as part of its 
supplemental questionnaire response. See TIPCO's February 9, 1998, 
supplemental questionnaire response (at 63 and at Exhibit 23B). For 
these reasons, we have accepted TIPCO's reported interest expenses for 
these final results.
---------------------------------------------------------------------------

    \13\ Contrary to the petitioners' assertion that we disallowed 
TIPCO's exchange rate gains generally in the 1995-96 final results, 
in fact we excluded only those exchange rate gains and losses 
related to accounts receivable, while including those relating to 
loans. 1995-96 Final Results, 63 FR at 7401.
---------------------------------------------------------------------------

SIFCO

Comment 1: Appropriate Comparison Market
    SIFCO contends that the Department's selection of Japan as the 
appropriate comparison market to be used as the basis for normal value 
was erroneous. Instead, while acknowledging that Japan is the most 
viable third-country market in terms of volume and value of sales, 
SIFCO claims that Canada is the most appropriate comparison market in 
terms of price, cost of production, similarity of merchandise, and 
market size.
    According to SIFCO, during verification it used samples to 
demonstrate the difference between the grade of merchandise sold to 
Japan

[[Page 43672]]

versus that sold to the United States. SIFCO adds that in the sales 
verification report, the Department concluded that the products were 
sorted according to specifications reported in SIFCO's January 13, 
1998, questionnaire response (at Appendix 2), and that the products 
destined for Japan were generally more yellow in color than the 
products destined for other countries. Based on those results, SIFCO 
argues, Japan is not the most appropriate comparison market because the 
merchandise sold to Japan is not similar in every aspect to the 
merchandise sold to the United States.
    Furthermore, SIFCO claims that where prices in more than one third 
in a country satisfy the criteria of section 773(a)(1)(B)(ii) of the 
Act,14 section 351.404(e)(1) of the Department's regulations 
provides that the Department generally will select the third country in 
which ``[t]he foreign like product exported to a particular third 
country is more similar to the subject merchandise exported to the 
United States than is the foreign like product exported to other third 
countries.'' SIFCO claims that its reported sales data indicate that 
the merchandise sold to Japan was particular to the Japanese market, 
whereas most of the merchandise sold to Canada was also sold to the 
United States; therefore, the Department should use sales of the 
foreign like product to Canada as the basis for its calculation of 
normal value.
---------------------------------------------------------------------------

    \14\ Normal value is based on prices at which the foreign like 
product is sold (or offered for sale) for consumption in a country 
other than the exporting country or the United States, if (I) such 
price is representative, (II) the aggregate quantity (or, if 
quantity is not appropriate, value) of the foreign like product sold 
by the exporter or producer in such other country is 5 percent or 
more of the aggregate quantity (or value) of the subject merchandise 
sold in the United States or for export to the United States, and 
(III) the administering authority does not determine that the 
particular market situation in such other country prevents a proper 
comparison with the export price or constructed export price.
---------------------------------------------------------------------------

    The petitioners respond, first, that the volume of SIFCO's sales to 
Japan was substantially greater than the volume of its sales to Canada, 
noting that, in accordance with section 351.404(e) of the Department's 
regulations, volume of sales is one of the primary criteria in the 
Department's selection of third-country markets. The petitioners 
contend that, in view of the magnitude of the sales volume to Japan 
and, because SIFCO has failed to prove that Japan represents a 
particular market situation such that it does not permit a proper 
comparison with the export price, the Department cannot reject Japan as 
the appropriate comparison market.
    Second, the petitioners assert that the ``nominal'' product 
differences between SIFCO's Japanese sales and its U.S. sales do not 
render the Japanese market an unsuitable basis for normal value. The 
petitioners claim that the only differences claimed by SIFCO that would 
distinguish between the Japanese and the U.S. markets are in color and 
in trimming. Moreover, the petitioners argue that these differences are 
of little relevance to the selection of the appropriate comparison 
market because the majority of SIFCO's sales to Japan and to the United 
States were of standard grade. Acknowledging that fancy grade was sold 
only to Japan, the petitioners state that it nevertheless accounted for 
a relatively small volume (19 percent) of SIFCO's total Japanese sales.
    Finally, the petitioners argue, Canada cannot be used as the 
comparison market for determining normal value because SIFCO's sales to 
Canada were not verified. Instead, the petitioners state, the 
Department verified SIFCO's sales to Japan and found no evidence that 
Japan is inappropriate as the comparison market. Finally, the 
petitioners argue that SIFCO's argument in favor of Canada as the 
appropriate comparison market was untimely, because, in accordance with 
section 351.301(d) of the Department's regulations, claims with respect 
to the proper comparison market must be made within 40 days of the 
transmittal of the questionnaire.
    DOC Position: For these final results, we have continued to rely on 
Japan as the comparison market for SIFCO. This market is the most 
appropriate choice, considering both volume of sales and product 
comparability. With respect to sales volume, SIFCO's sales to Japan 
were approximately twice the volume of sales to Canada. In terms of 
product comparability, while SIFCO focuses on the fancy grade 
merchandise involved in a minority of sales to Japan, we note that 
SIFCO's POR sales to both Japan and the United States were 
predominantly of standard grade; such sales accounted for over 80 
percent of the merchandise sold to both markets. While we recognize 
SIFCO's claim that certain of its other sales to Japan are fancy grade, 
this fact alone does not preclude our use of Japan as the comparison 
market. For these reasons, we continue to find that Japan is the most 
comparison market for SIFCO under the standard set forth in the 
Department's regulations. See 19 CFR 351.404(e)(1) and (2) (regarding 
product comparability and sales volume, respectively, as relevant 
criteria for third-country market selection).
Comment 2: Allocation of Sugar Costs
    SIFCO argues that, in the preliminary results, sugar costs were 
erroneously included in the cost of manufacture for U.S. sales. 
Instead, SIFCO claims, all sugar costs should be allocated to the cost 
of manufacturing for sales to Japan. SIFCO points out that in its 
January 9, 1998, questionnaire response (at Appendix 6), it requested 
that sugar costs be excluded from the cost of manufacturing for sales 
to the United States because, as indicated by SIFCO's reported U.S. 
sales data, all products sold to the United States were packed in 
natural juice.
    Contrary to SIFCO's claim, the petitioners argue that, during the 
POR, SIFCO sold to the United States canned pineapple fruit packed in 
heavy syrup. Notwithstanding the fact that the Department's cost 
verification report (at 2) 15 also states that all SIFCO's 
products sold to the United States were packed in natural juice, the 
petitioners note that Exhibit S-1 of the sales verification report 
indicates a particular sale to the United States packed in heavy syrup. 
Therefore, the petitioners argue, sugar costs should not be excluded 
from the cost of manufacturing of any products that contain 
sugar.16
---------------------------------------------------------------------------

    \15\ Memorandum to Office Director from Case Analysts: 
Verification of the Cost of Production and Constructed Value Data 
Submitted by Siam Fruit Canning (1988) Co. Ltd., in the 1996-97 
Administrative Review of the Antidumping Duty Order on Canned 
Pineapple Fruit From Thailand, June 3, 1998.
    \16\ Heavy syrup contains sugar.
---------------------------------------------------------------------------

    The petitioners add that SIFCO's claim that sugar costs should be 
excluded from the calculation of cost of manufacturing for U.S. sales 
is irrelevant because CV was not used as normal value, as all U.S. 
sales were compared to sales in Japan. Finally, the petitioners argue 
that, because all sales to Japan were packed in syrup, sugar costs 
should not be removed from the costs of manufacturing for purposes of 
the test of sales to Japan made below the cost of production.
    DOC Position: We acknowledge that in the cost verification report 
we erroneously stated that all of SIFCO's sales to the United States 
were packed in natural juice. The petitioners are correct in pointing 
out that the invoice attached to the sales verification report 
17 as Exhibit S-1 does indicate that this U.S. sale was 
packed in syrup. We have reexamined SIFCO's reported U.S. sales list 
and have determined that

[[Page 43673]]

this represents the only such sale during the POR. For the final 
results we have allocated sugar costs to all products that contained 
sugar.
---------------------------------------------------------------------------

    \17\ Memorandum to Office Director from Case Analysts: 
Verification of Sales Information Submitted by Siam Fruit Canning 
(1988) Co. Ltd., in the 1996-97 Administrative Review of the 
Antidumping Duty Order on Canned Pineapple Fruit From Thailand, June 
3, 1998.
---------------------------------------------------------------------------

Malee

Comment 1: Calculation of G&A Expenses
    The petitioners assert that the G&A expenses for Malee Supply 
(1994) Co., Ltd. (Malee Supply) should be included in the calculation 
of Malee's G&A expenses because Malee Supply is a distributor of CPF in 
the home market. According to the petitioners, the Department's 
questionnaire (at D-20) explicitly instructs the respondent to include 
all relevant G&A incurred in connection with the production and sale of 
the foreign like product, including ``an amount for administrative 
services performed on your company's behalf by its parent company of 
other affiliated party.''
    Malee responds that the Department should not include Malee 
Supply's selling and administrative expenses in the calculation of 
Malee's COP and CV because doing so would mis-classify selling expenses 
as production costs, and would also result in the double-counting of 
such expenses since Malee has already reported them as selling 
expenses. Malee states that Malee Supply, as Malee's subsidiary selling 
arm, has no other purpose than to perform selling functions and, 
therefore, its G&A expenses should be deemed selling expenses to be 
used as adjustments to home market price. In addition, Malee argues 
that even in cases where a selling agent has participated in further 
manufacturing, the Department has treated SG&A expenses as selling 
expenses, citing, e.g., Oil Country Tubular Goods from Argentina; Final 
Determination of Sales at Less than Fair Value, 60 FR 33539, 33550 
(June 28, 1995) (OCTG From Argentina).
    DOC Position: As we stated in response to TPC Comment 3, above, 
where an affiliate's costs pertain to reselling the merchandise to 
unaffiliated customers, it is our practice to treat such expenses as 
selling expenses. All of the expenses incurred by Malee Supply were 
related to sales activities on behalf of Malee's home market sales. See 
Page B-30 and Exhibit B-14 of Malee's October 21, 1997, response. 
Accordingly, we have treated these expenses as selling expenses.
Comment 2: Calculation of Interest
    The petitioners argue that Malee should have calculated its 
interest factor based on Malee's consolidated financial statements, in 
accordance with the Department's normal practice, citing Gray Portland 
Cement and Clinker from Mexico: Final Results of Antidumping Duty 
Administrative Review, 62 FR 17148, 17160 (April 9, 1997) (Cement from 
Mexico), and Camargo Correa Metais, S.A. v. United States, 17 CIT 897 
(1993).
    Malee agrees with the petitioners' suggestion.
    DOC Position: In accordance with the Department's practice (see 
Cement from Mexico, 62 FR at 17160), we have recalculated Malee's 
interest factor net of Malee's short-term interest income.
Comment 3: Conversion of U.S. Duty
    Malee argues that, in the preliminary results, the Department 
failed to convert to U.S. dollars those U.S. duty expenses reported in 
Thai baht.
    The petitioners respond that, acccording to Malee's October 20, 
1997, questionnaire response (at C 25-26), Malee's U.S. duty was 
reported in U.S. dollars and no conversion is necessary.
    DOC Position: We agree with the petitioners and have not made any 
adjustments to U.S. duty in the margin calculation.

Final Results of Review

    As a result of our review, we determine that the following 
percentage weighted-average margins exist for the period July 1, 1996, 
through June 30, 1997:

------------------------------------------------------------------------
                                                                Margin  
                    Manufacturer/exporter                      (percent)
------------------------------------------------------------------------
Siam Food Products Public Company Ltd.......................        0.59
The Thai Pineapple Public Company, Ltd......................        5.24
Thai Pineapple Canning Industry Corp., Ltd..................        4.37
Malee Sampran Factory Public Company Ltd....................        0.30
The Prachuab Fruit Canning Co. Ltd..........................       11.87
Siam Fruit Canning (1988) Co. Ltd...........................        5.41
Vita Food Factory (1989) Co. Ltd............................       51.16
------------------------------------------------------------------------

    The Department shall determine, and the Customs Service shall 
assess, antidumping duties on all appropriate entries. In accordance 
with 19 CFR 351.212(b)(1), we have calculated importer-specific 
assessment rates by dividing the dumping margin found on the subject 
merchandise examined by the entered value of such merchandise. We will 
direct the Customs Service to assess antidumping duties by applying the 
assessment rate to the entered value of the merchandise.
    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 by section 751(a) 
of the Act: (1) for the companies named above, the cash deposit rate 
will be the rate listed above, except if the rate is less than 0.5 
percent and, therefore, de minimis, the cash deposit will be zero; (2) 
for merchandise exported by manufacturers or exporters not covered in 
this review but covered in a previous segment of this proceeding, the 
cash deposit rate will continue to be the company-specific rate 
published in the most recent final results in which that manufacturer 
or exporter participated; (3) if the exporter is not a firm covered in 
this review or in any previous segment of this proceeding, but the 
manufacturer is, the cash deposit rate will be that established for the 
manufacturer of the merchandise in these final results of review or in 
the most recent final results in which that manufacturer participated; 
and (4) if neither the exporter nor the manufacturer is a firm covered 
in this review or in any previous segment of this proceeding, the cash 
deposit rate will be 24.64 percent, the all others rate established in 
the LTFV investigation. These deposit requirements shall remain in 
effect until publication of the final results of the next 
administrative review.
    This notice also serves as final reminder to importers of their 
responsibility 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 in the subsequent assessment of double antidumping 
duties.
    This notice also is the only reminder to parties subject to 
administrative protective order (APO) of their responsibility 
concerning the return or destruction of proprietary information 
disclosed under APO in accordance with 19 CFR 353.34(d). Failure to 
comply is a violation of the APO.
    This determination is issued and published in accordance with 
sections 751(a)(1) and 777(i)(1) of the Act.


[[Page 43674]]


    Dated: August 7, 1998.
Robert S. LaRussa,
Assistant Secretary for Import Administration.
[FR Doc. 98-21927 Filed 8-13-98; 8:45 am]
BILLING CODE 3510-DS-P