[Federal Register Volume 68, Number 124 (Friday, June 27, 2003)]
[Notices]
[Pages 38291-38301]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-16343]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-549-813]


Notice of Preliminary Results, Partial Rescission of Antidumping 
Duty Administrative Review, and Preliminary Determination To Not Revoke 
Order in Part: Canned Pineapple Fruit From Thailand

AGENCY: Import Administration, International Trade Administration, U.S. 
Department of Commerce.
SUMMARY: In response to requests by producers/exporters of subject 
merchandise and by the petitioners, the Department of Commerce (the 
Department) is conducting an administrative review of the antidumping 
duty order on canned pineapple fruit (CPF) from Thailand. This review 
covers seven producers/exporters of the subject merchandise. The review 
of one additional company is being rescinded because it did not ship 
during the period of review (POR), July 1, 2001, through June 30, 2002.
    We preliminarily determine that for certain producers/exporters 
sales have been made below normal value (NV). If these preliminary 
results are adopted in our final results, we will instruct the U.S. 
Bureau of Customs and Border Protection (BCBP) to assess antidumping 
duties based on the difference between the export price (EP) or the 
constructed export price (CEP), as applicable, and the NV.

EFFECTIVE DATE: June 27, 2003.

FOR FURTHER INFORMATION CONTACT: Marin Weaver or Charles Riggle, at 
(202) 482-2336 or (202) 482-0650, respectively; AD/CVD Enforcement 
Office 5, Group II, Import Administration, International Trade 
Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW., Washington, DC 20230.

SUPPLEMENTARY INFORMATION:

Case History

    On July 18, 1995, the Department issued an antidumping duty order 
on CPF from Thailand. See Notice of Antidumping Duty Order and Amended 
Final Determination: Canned Pineapple Fruit From Thailand, 60 FR 36775 
(July 18, 1995). On July 1, 2002, we published in the Federal Register 
the notice of opportunity to request the seventh administrative review 
of this order. See Antidumping or Countervailing Duty Order, Finding, 
or Suspended Investigation; Opportunity to Request Administrative 
Review, 67 FR 44172 (July 1, 2002).
    In accordance with section 351.213(b)(2) of the Department's 
regulations, the following producers/exporters made timely requests 
that the Department conduct an administrative review for the period 
from July 1, 2001, through June 30, 2002: Kuiburi Fruit Canning Company 
Limited (Kuiburi); Malee Sampran Public Co., Ltd. (Malee); The Thai 
Pineapple Public Co., Ltd. (TIPCO); and Dole Food Company, Inc., Dole 
Packaged Foods Company, and Dole Thailand, Ltd (collectively, Dole).
    In addition, on July 31, 2002, the petitioners, Maui Pineapple 
Company and the International Longshoremen's and Warehousemen's Union, 
in accordance with Sec.  351.213(b)(1) of the Department's regulations, 
submitted a timely request that the Department conduct a review of 
Malee, Prachuab Fruit Canning Company (Praft), Siam Fruit Canning 
(1988) Co., Ltd. (SIFCO), the Thai Pineapple Canning Industry Corp., 
Ltd. (TPC), Vita Food Factory (1989) Co. Ltd. (Vita), Siam Food 
Products Public Co., Ltd. (SFP), TIPCO, Kuiburi and Dole.
    On August 27, 2002, we published the notice of initiation of this 
antidumping duty administrative review, covering the period July 1, 
2001, through June 30, 2002. See Initiation of Antidumping and 
Countervailing Duty Administrative Reviews and Requests for Revocation 
in Part, 67 FR 55000 (August 27, 2002); and Initiation of Antidumping 
and Countervailing Duty Administrative Reviews, Requests for Revocation 
in Part and Deferral of Administrative Reviews, 67 FR 60210 (September 
25, 2002).\1\ On March 27, 2003 and again on June 6, 2003 the 
Department partially extended the preliminary results. See Canned 
Pineapple Fruit from Thailand: Notice of Extension of Time Limit of 
Preliminary Results of Antidumping Duty Administrative Review (68 FR 
14941) and Canned Pineapple Fruit from Thailand: Notice of Extension of 
Time Limit of Preliminary Results of Antidumping Duty Administrative 
Review (68 FR 33910), respectively.
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    \1\ On July 31, 2002, SFP requested a deferral of the seventh 
administrative review for CPF from Thailand pending the final 
results on its request for revocation in the sixth administrative 
review. On September 25, 2002 the Department rescinded its review of 
SFP and, in accordance with section 351.213(copyright)) of the 
Department's regulations, deferred for one year the initiation of 
the July 1, 2001 through June 30, 2002 administrative review of the 
antidumping duty order on CPF from Thailand with respect to SFP. On 
December 13, 2002 the Department revoked the order with respect to 
SFP. See Notice of Final Results of Antidumping Duty Administrative 
Review, Recession of Administrative Review in Part, and Final 
Determination to Revoke Order in part: Canned Pineapple Fruit from 
Thailand (67 FR 76718).

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[[Page 38292]]

    On October 4, 2002, in response to the Department's 
questionnaire,\2\ Praft stated that it made no shipments to the United 
States of the subject merchandise during the POR. The Department 
independently confirmed with the BCBP that there were no shipments from 
Praft during the POR. See Memorandum to File from Marin Weaver, October 
24, 2002. Therefore, in accordance with section 351.213(d)(3) of the 
Department's regulations, and consistent with our practice, we are 
treating Praft as a non-shipper for purposes of this review and are 
preliminarily rescinding this review with respect to Praft.
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    \2\ Section A of the questionnaire requests general information 
concerning a company's corporate structure and business practices, 
the merchandise under investigation that it sells, and the manner in 
which it sells that merchandise in all of its markets. Section B 
requests a complete listing of all home market sales, or, if the 
home market is not viable, of sales in the most appropriate third-
country market (this section is not applicable to respondents in 
non-market economy (NME) cases). Section C requests a complete 
listing of U.S. sales. Section D requests information on the cost of 
production (COP) of the foreign like product and the constructed 
value (CV) of the merchandise under investigation. Section E 
requests information on further manufacturing.
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Scope of the Review

    The product covered by this review is CPF, 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, the written description of the scope is 
dispositive.

Verification

    As provided in sections 782(i)(2) and (3) of the Act, we verified 
information provided by Malee, TIPCO and Dole. We used standard 
verification procedures, including on-site inspection of the respondent 
producers' facilities and examination of relevant sales and financial 
records.

Facts Available (FA)

    For the reasons discussed below, we determine that, in accordance 
with sections 776(a)(2), 776(b) and 782(d) of the Act, the use of 
adverse facts available (AFA) is appropriate for the preliminary 
results for TPC.

1. Background

    On September 19, 2002, the Department issued a market economy 
questionnaire to TPC. In section A(1) TPC was instructed to submit a 
chart that reports the volume and value of sales of the merchandise 
under review to the United States and in the home market or, if the 
home market is not viable, as in this case, to each of its three 
largest third-country markets. When reporting volume, the questionnaire 
instructed respondents to exclude sales to affiliated resellers and 
``[r]eport instead the resales by the affiliates to unaffiliated 
customers.'' \3\ In addition, the general instructions of the 
questionnaire instructed TPC to ``identify any methodological changes 
you have made from your response in any previous administrative 
review'' and to ``identify any reporting methodologies that you know to 
not be in accordance with previous Departmental decisions regarding 
your company.'' \4\
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    \3\ See Antidumping Questionnaire at A-2.
    \4\ Antidumping Questionnaire at G-7.
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    On October 23, 2003, the Department received TPC's section A 
response and the accompanying volume and value of sales chart labeled 
as Exhibit A-1. TPC failed to report resales to unaffiliated customers 
in the United States and in its two largest third-country markets, the 
Netherlands and Japan, in both the response and in Exhibit A-1 as 
instructed by the Department's questionnaire. TPC stated in its 
response that its answers and the accompanying exhibits were predicated 
on TPC not being affiliated to Mitsubishi International Corporation 
(MIC) and Princes Foods B.V. (Princes), which have sales in the United 
States and the Netherlands respectively.\5\ In addition, for Mitsubishi 
Corporation's (MC's) sales of CPF in Japan, TPC stated that because of 
MC's layered distribution system, lack of a centralized computer system 
to collate sales, different levels of trade at which sales are made to 
the final customer, and Japan's import protection scheme for Okinawan 
pineapple, it was ``impossible to limit [its] reporting of the value 
and volume of sales in Japan to resales to unaffiliated customers.''\6\
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    \5\ TPC argued that although the Department found it to be 
affiliated with MIC and Princes in the preliminary determination of 
the sixth review, it was responding to the Department's 
questionnaire in the seventh review as if it was not affiliated with 
MIC and Princes because it challenged the finding in its case brief 
for the sixth review and the Department's final determination in 
that review was still pending at the time it submitted its section A 
response on October 23, 2002. In the final results of the sixth 
review TPC was found to be affiliated with MIC and Princes. See 
Notice of Final Results of Antidumping Duty Administrative Review, 
Recission of Administrative Review in Part, and Final Determination 
to Revoke Order in Part: Canned Pineapple Fruit from Thailand, 67 FR 
76718 (December 13, 2002) and accompanying Issues and Decision 
Memorandum at Comment 12. The Department continues to find TPC to be 
affiliated with MIC, Princes, and COSI in this review, as no 
relevant facts have change since the sixth review. See TPC's 
November 22, 2002, section A response at 1-9.
    \6\ TPC's October 23, 2002, section A response at 10.
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    On November 14, 2002, the Department sent a letter to TPC stating 
that:

    Based upon the information provided in your response and the 
Department's preliminary finding in the sixth review, you are 
required to resubmit your section A response so that it reflects 
downstream sales made by Mitsubishi International Corporation and 
Princes to unaffiliated customers, and also U.S. sales made by 
Chicken of the Sea International. To the extent necessary, please 
revise the quantity and value chart submitted as Exhibit A-1 of your 
October 23, 2002 response to reflect any transhipments by Princes.
    Furthermore, please ensure that you have accounted for all sales 
to Japan made either directly by TPC or through an affiliate. 
Provide a revised Exhibit A-1 to reflect the three largest third-
country markets after taking into account the sales by 
affiliates.\7\

    \7\ See November 14, 2002, letter from the Department to TPC 
(footnote omitted).
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The Department specified that the information was to be provided to the 
Department no later than November 22, 2002. On November 22, 2002, TPC 
submitted a revised section A response reporting sales to unaffiliated 
customers by Princes in the Netherlands, and by MIC and Chicken of the 
Sea International (COSI) in the United States, but still failed to 
report sales in Japan by affiliates to unaffiliated customers. TPC 
again claimed that it ``proved impossible'' to limit its reporting of 
sales in Japan to sales by affiliates to unaffiliated customers citing 
the same reasons it gave in its original section A response.\8\
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    \8\ TPC's November 22, 2002, revised section A response at 11 
and 12.
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    At this point in the review, the primary issue in the case had 
become whether the Netherlands or Japan was the appropriate third-
country comparison market.\9\ Therefore, on

[[Page 38293]]

December 4, 2002, the Department sent a second letter to TPC informing 
the company that ``[i]t is critical that the third-country summary 
information be presented in a consistent and uniform manner in order 
for the Department to make a decision regarding selection of the 
appropriate third-country market.'' The Department requested that TPC 
``revise Exhibit A-1 to account for the resales by affiliated companies 
to unaffiliated customers for all sales to Japan during the POR, as 
requested in the Department's original questionnaire'' no later than 
December 11, 2002. TPC responded on December 11, 2002 that ``it is 
impossible to provide [MC's] resale data specific to TPC-produced 
canned pineapple fruit'' \10\ citing the same reasons it did in its 
October 23, 2002, section A response. TPC went on to state, however, 
that if the Department insisted upon having the data, TPC was 
requesting a six-week extension.
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    \9\ In TPC's original section A chart submitted to the 
Department on October 23, 2002, the volume of sales to the 
Netherlands was somewhat higher than the volume of sales to Japan. 
This difference was significantly reduced however when TPC submitted 
its revised section A chart on November 22, 2002, showing the volume 
of sales of subject merchandise to unaffiliated customers in the 
Netherlands. The equivalent sales information for Japan was thus 
imperative in order to make a determination as to the appropriate 
third-country comparison market.
    \10\ TPC's December 11, 2002, letter at 4.
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    On December 27, 2002, the Department sent a third letter to TPC 
stating that ``the Department again requests that you revise Exhibit A-
1 to account for the resales by affiliated companies to unaffiliated 
customers for all sales to Japan during the period of review'' no later 
than January 10, 2003. In the letter, the Department warned TPC that 
[i]f you fail to provide this information, we may be forced to use AFA, 
as we will be unable to determine the appropriate third-country market 
to be used as the basis for normal value.'' On January 10, 2003, the 
Department partially granted a request by TPC for an extension making 
the requested data due on January 21, 2003. On January 21, 2003, TPC 
submitted a revised volume and value of sales chart reflecting sales by 
affiliates to unaffiliated customers in the United States, the home 
market, and each of TPC's largest third-country markets, including 
Japan.
    On April 4, 2003, TPC made a submission bringing to the 
Department's attention for the first time that the ``cases'' it 
reported as a unit of measure for its volume and value of sales in 
Exhibit A-1 referred to the number of actual cases sold, rather than 
the number of cases sold on a 20-ounce equivalent basis. TPC's 
reporting of its volume and value of sales in actual cases sold rather 
than on a 20-ounce equivalent basis represented a change in its 
reporting methodology from the previous administrative review.\11\ On 
April 16, 2003, the Department sent a letter to TPC requesting that it 
revise Exhibit A-1 to reflect its volume and value of sales on a 20-
ounce equivalent basis. In addition, the Department stated that [g]iven 
the current deadline of June 6, 2003 for the preliminary results of 
this review, there is now insufficient time to resolve the question of 
the proper comparison market and then, at a later date, to possibly 
request data for a new third-country market. Accordingly, we are now 
requiring that you provide the Department with a complete section B 
response for all of your sales to unaffiliated customers in Japan.'' In 
its April 16, 2003, letter to TPC the Department again warned that ``if 
you fail to provide this information in the time provided, we may use 
facts available, pursuant to section 776(a) of the Tariff Act of 1930, 
as amended (the Act), as we will be unable to determine the appropriate 
third-country market to be used as the basis for normal value.'' The 
requested information was to be provided to the Department no later 
than April 24, 2003.
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    \11\ See Memorandum from Charles Riggle, Program Manager, Office 
5, to File, dated April 16, 2003.
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    On April 24, 2003, the Department received a submission from TPC in 
which it failed to provide both its volume and value of sales on a 20-
ounce equivalent basis and a complete database of its sales to 
unaffiliated customers in Japan. TPC argued that the Department should 
permit the reporting of volume and value on the basis of actual cases 
sold because: (1) CPF is inventoried, booked, and sold on the basis of 
actual cartons; (2) the price of CPF does not vary directly based upon 
the quantity of CPF in each can; and (3) there is no uniform, objective 
method in the industry for calculating a 20-ounce equivalence. TPC also 
stated that [i]t was impractical to arrange for [MC and its affiliates] 
to report sales volumes on a 20-ounce equivalent basis that is 
consistent with the methodology used by TPC in the time allotted for 
TPC's response.'' \12\ TPC did not request an extension so that it 
could attempt to report its volume and value of sales on a 20-ounce 
equivalent basis.
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    \12\ TPC's April 24, 2003, submission at 7.
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    In regard to the section B sales database for Japan, TPC claimed 
that it would not be able to provide the Department with the requested 
information for the following reasons: (1) Due to TPC's distribution 
system in Japan, there are several companies with separate financial 
statements in many locations where invoicing takes place; (2) there has 
been a consolidation between two of the MC affiliates which would 
necessitate compiling their portion of the sales listing by hand; (3) 
one of TPC's affiliates has a policy of removing aggregate volume data 
on a 13-month rolling basis and thus the relevant data no longer exist; 
(4) many of the affiliates lack computerized sales data systems; (5) 
the complexity of the distribution system would make calculating 
movement and inventory expenses alone ``a gargantuan and fundamentally 
unmanageable task;'' (6) MC was moving offices in May and all of its 
accounting records had been put into boxes; and (7) the first week in 
May is a Japanese holiday. TPC stated that [f]or all of these reasons 
[i]t is regrettably unable to comply with the Department's request, 
even within any foreseeable extension of the current deadline.'' \13\ 
TPC did however, request that the Department make a finding as to 
Japan's appropriateness as a possible third-country comparison market 
prior to requiring TPC to provide a complete section B sales database.
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    \13\ Id. at 13.
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2. Applicable Statute

    Section 776(a)(2) of the Act, provides that:

    * * * if an interested party or any other person--(A) withholds 
information that has been requested by the administering authority * 
* *; (B) fails to provide such information by the deadlines for the 
submission of the information or in the form and manner requested 
subject to subsections (c)(1) and (e) of section 782 * * *; (C) 
significantly impedes a proceeding under this subtitle; or (D) 
provides such information but the information cannot be verified as 
provided in section 782(i), the administering authority * * * shall, 
subject to section 782(d), use the facts otherwise available in 
reaching the applicable determination under this subtitle.

    The statute requires that certain conditions be met before the 
Department may resort to the FA. Where the Department determines that a 
response to a request for information does not comply with the request, 
section 782(d) of the Act provides that the Department will so inform 
the party submitting the response and will, to the extent practicable, 
provide that party an opportunity to remedy or explain the deficiency.
    If the party fails to remedy the deficiency within the applicable 
time limits, the Department may, subject to section 782(e), disregard 
all or part of the original and subsequent responses, as appropriate. 
Section 782(e) states that the Department shall not decline to consider 
information deemed ``deficient'' under section 782(d) if: (1) The 
information is submitted by the established deadline; (2) the 
information can be verified; (3) the information is not so incomplete 
that it cannot serve as

[[Page 38294]]

a reliable basis for reaching the applicable determination; (4) the 
interested party has demonstrated that it acted to the best of its 
ability; and (5) the information can be used without undue 
difficulties. Furthermore, section 776(b) of the Act provides that the 
Department may use an inference adverse to the interests of a party 
that has failed to cooperate by not acting to the best of its ability 
to comply with the Department's requests for information. See also 
Statement of Administrative Action (SAA) accompanying the URAA, H.R. 
Rep. No. 103-316 at 870 (1994). The statute provides, in addition, that 
in selecting from among the FA the Department may, subject to the 
corroboration requirements of section 776(c), rely upon information 
drawn from the petition, a final determination in the investigation, 
any previous administrative review conducted under section 751 (or 
section 753 for countervailing duty cases), or any other information on 
the record.

3. Application of FA

    As described above, TPC has withheld information, failed to respond 
to the Department's requests for information by the deadlines 
established or in the form required, and has significantly impeded this 
review. TPC failed to properly respond to the Department's request, 
pursuant to section 782(d) of the Act, that it report its volume and 
value of sales on a uniform (20-ounce equivalent) basis as it had done 
in the prior review. In asking for a revised chart of TPC's volume and 
value of sales, the Department informed TPC in its April 16, 2003, 
letter that reporting the ``actual cases sold is meaningless in terms 
of providing a basis for comparing the volume sold between different 
markets'' and that ``to conduct the necessary analysis needed to 
determine the appropriate third-country market, it is imperative that 
[the Department] be provided with data that is consistent and uniform 
across countries.'' By not providing the Department with a revised 
chart of its volume and value of sales based on a consistent and 
uniform unit of measure, e.g., on a 20-ounce equivalent basis, TPC 
prevented the Department from conducting the necessary analysis for 
determining the appropriate third-country comparison market to be used 
as a basis for calculating NV.
    TPC's refusal to provide the Department with its volume and value 
of sales on a 20-ounce equivalent basis has also precluded the 
Department's consideration of TPC's request for a finding regarding 
Japan's appropriateness as a third-country comparison market.\14\ 
Pursuant to Sec. 351.404(e) of the Department's regulations, the 
Secretary will generally select the third-country market on the basis 
of certain criteria when, as in this review, several third-country 
markets are viable. The ``market situation'' and product similarity 
issues raised by TPC in its November 23, 2003, Combined Section A 
Response and again in its April 24, 2003, letter to the Department, 
would be considered among the factors in a third-country selection 
analysis. However, no one factor is considered in isolation when 
conducting such an analysis. All the criteria under Sec. 351.404(e) of 
the Department's regulations, product similarity, volume of sales, and 
other factors, are considered together when determining the 
appropriateness of a third-country comparison market. Therefore, 
without having TPC's volume of sales reported on a 20-ounce equivalent 
basis, which would allow for a meaningful comparison of sales volume 
across countries, the Department is unable to make a finding as to the 
appropriateness of Japan as a third-country market.
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    \14\ While we requested that TPC report its volume and value of 
sales on a 20-ounce equivalent basis, consistent with its 
methodology in prior reviews, some respondents used other common 
units of measure, e.g. kilograms and metric tons. TPC not only 
failed to report sales on a 20-ounce equivalent basis, it also 
offered no alternative common unit of measure.
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    According to the volume of sales (one of the relevant factors the 
Department considers under Sec.  351.404(e) of its regulations), 
submitted in TPC's October 23, 2002, response at Exhibit A-1, the 
third-country market with the largest volume of sales was either Japan 
or the Netherlands. However, the Department was unable to make this 
determination from the outset of the review because TPC failed to 
report its sales to unaffiliated customers first in the Netherlands, 
and then in Japan. Furthermore, as detailed above, due to the delays in 
the progress of this review, in particular caused by TPC's reluctance 
to provide the Department with its volume and value of sales in Japan 
to unaffiliated customers, and the impending deadline for the 
preliminary results, the Department was forced to request a complete 
section B response, including a sales database for Japan. TPC failed to 
provide the requested response, thereby preventing the Department from 
calculating NV if it were eventually to find Japan to be the most 
appropriate third-country market.
    Finally, we find that the application of section 782(e) does not 
overcome the respondents' failure to respond, given that the deadline 
for submitting the necessary information has passed. See sections 
782(e)(1), (3) and (4). Because the information that TPC failed to 
report is critical for purposes of the preliminary dumping 
calculations, the Department must resort to facts otherwise available 
in reaching its preliminary results, pursuant to sections 776(a)(2)(A)-
(C) of the Act.

4. Use of Adverse Inferences

    We also find that the application of an adverse inference in this 
review is appropriate, pursuant to section 776(b) of the Act. As 
discussed above, TPC has significantly impeded and delayed the progress 
of this review by repeatedly failing to properly report its volume and 
value of sales to the United States, and because its home market is not 
viable, to each of its three largest third-country markets. After TPC's 
initial failure to properly report its volume and value of sales as 
part of its October 23, 2003, section A response, it required three 
additional requests by the Department, pursuant to section 782(d) of 
the Act, and multiple extensions, to obtain TPC's sales in Japan to 
unaffiliated customers. TPC eventually provided the Department with the 
requested data despite its claims that the information would be 
``impossible'' to obtain. These delays resulted in the Department 
having to extend the preliminary results for this review from April 2, 
2003, to June 6, 2003.\15\
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    \15\ See Memorandum from Charles Riggle, Program Manager, Office 
5, to Gary Taverman, Acting Deputy Assistant Secretary, concerning 
an Extension of Time Limit for Preliminary Results of Review, dated 
March 20, 2003.
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    TPC also failed to bring to the Department's attention in a timely 
manner that it was reporting its volume and value of sales on the basis 
of actual cartons sold, rather than on a 20-ounce equivalent basis. 
This represented a change in TPC's reporting methodology from the prior 
review and should have been identified as such by TPC in its section A 
response as required in the general instructions of the market economy 
questionnaire sent to TPC by the Department. When the Department 
learned of the change in TPC's reporting methodology it requested that 
TPC provide the Department with a chart of its volume and value of 
sales on a 20-ounce equivalent basis. The Department gave TPC clear 
instructions and warned that without the data it would not be able to 
conduct the necessary analysis to determine the appropriate third-
country market in this review. TPC failed to provide the Department 
with the requested information despite its having demonstrated in the 
previous review

[[Page 38295]]

that it is capable of doing so.\16\ Moreover, TPC did not attempt to 
provide an alternative means of reporting its sales volume in a 
consistent and uniform manner that would allow for a proper comparison 
of the volume of sales across countries. We have therefore concluded 
that TPC has failed to cooperate with the Department by not acting to 
the best of its ability, and has hampered the Department's ability to 
evaluate the appropriateness of the Japanese market and to make the 
necessary third-country comparison market determination.
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    \16\ See Memorandum from Charles Riggle, Program Manager, Office 
5, to File, concerning Seventh Administrative Review of Canned 
Pineapple Fruit from Thailand, dated April 16, 2003.
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    Finally, TPC failed to provide the Department with a section B 
sales database for Japan. In doing so, TPC did not request an extension 
of the April 24, 2003 deadline so that it could attempt to comply with 
the Department's request. To the contrary, TPC stated that even if the 
Department were to substantially extend the deadline it would not be 
able to comply with the Department's request. The reasons cited by TPC 
for its inability to provide the requested data are inadequate. TPC has 
known since the beginning of this review that Japan was a potential 
third-country market. Therefore, TPC should have taken the appropriate 
steps to ensure that its affiliates would gather and retain any 
necessary documentation in an accessible format. TPC also requested 
that the Department make a finding as to Japan's appropriateness as a 
possible third-country comparison market prior to requiring TPC to 
provide a complete section B sales database. However, as previously 
mentioned, the Department is not able to conduct a proper third-country 
analysis without having its volume of sales reported in a consistent 
and uniform manner, which TPC has failed to provide.
    For the reasons described above, we believe that TPC did not act to 
the best of its ability in responding to the Department's request for 
information and that, consequently, an adverse inference is warranted 
under section 776(b) of the Act. See, e.g., Final Determination of 
Sales at Less Than Fair Value; Stainless Steel Sheet and Strip in Coils 
From Germany, 64 FR 30710, (June 8, 1999) and accompanying Issues and 
Decision Memorandum at Comment 3; see also Stainless Steel Sheet and 
Strip From Taiwan; Final Results and Partial Rescission of Antidumping 
Duty Administrative Review, 67 FR 6682 (February 13, 2002) and 
accompanying Issues and Decision Memorandum at Comment 24.

5. Selection and Corroboration of Information Used as AFA

    Where we must base the entire dumping margin for a respondent in an 
administrative review on FA because that respondent failed to cooperate 
by not acting to the best of its ability to comply with a request for 
information, section 776(b) of the Act authorizes the use of inferences 
adverse to the interests of that respondent in choosing facts 
available. Section 776(b) of the Act also authorizes the Department to 
use as adverse facts available information derived from the petition, 
the final determination, a previous administrative review, or other 
information placed on the record. Due to TPC's failure to cooperate, we 
have preliminarily assigned to TPC as AFA a rate of 51.16 percent, the 
highest rate calculated for any respondent during any segment of this 
proceeding. This rate was calculated for a respondent in the less than 
fair value (LTFV) investigation.\17\
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    \17\ See Notice of Antidumping Duty Order and Amended Final 
Determination: Canned Pineapple Fruit From Thailand, 60 FR 36775 
(July 18, 1995).
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    Because information from prior segments of the proceeding 
constitutes secondary information, section 776(c) of the Act provides 
that the Department shall, to the extent practicable, corroborate that 
secondary information from independent sources reasonably at its 
disposal. The Statement of Administrative Action (SAA) provides that 
``corroborate'' means simply that the Department will satisfy itself 
that the secondary information to be used has probative value. See SAA 
at 870 (1994).
    To corroborate secondary information, the Department will, to the 
extent practicable, examine the reliability and relevance of the 
information to be used. However, unlike other types of information, 
such as input costs or selling expenses, there are no independent 
sources for calculated dumping margins. Thus, in an administrative 
review, if the Department chooses as total AFA 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. With 
respect to the relevance aspect of corroboration, however, the 
Department will consider information reasonably at its disposal as to 
whether there are circumstances that would render a margin 
inappropriate. Where circumstances indicate that the selected margin is 
not appropriate as AFA, the Department will disregard the margin and 
determine an appropriate margin. See, e.g., Fresh Cut Flowers from 
Mexico; Final Results of Antidumping Duty Administrative Review, 61 FR 
6812, 6814 (February 22, 1996) (where the Department disregarded the 
highest margin as AFA because the margin was based on another company's 
uncharacteristic business expense resulting in an unusually high 
margin). In this review, we are not aware of any circumstances that 
would render the use of the margin selected for TPC as inappropriate.

Product Comparisons

    We compared the EP or the CEP, as applicable, to the NV, as 
described in the Export Price and Constructed Export Price and Normal 
Value sections of this notice. We first attempted to compare 
contemporaneous sales in the U.S. and comparison markets of products 
that were identical with respect to the following characteristics: 
weight, form, variety, and grade. Where we were unable to compare sales 
of identical merchandise, we compared products sold in the United 
States with the most similar merchandise sold in the comparison markets 
based on the characteristics listed above, in that order of priority. 
Where there were no appropriate comparison market sales of comparable 
merchandise, we compared the merchandise sold in the United States to 
constructed value (CV), in accordance with section 773(a)(4) of the 
Act. For all respondents, we based the date of sale on the date of the 
invoice.

Export Price and Constructed Export Price

    For the price to the United States, we used, as appropriate, EP or 
CEP as defined in sections 772(a) and 772(b) of the Act, respectively. 
Section 772(a) of the Act defines EP as the price at which the subject 
merchandise is first sold (or agreed be sold) before the date of 
importation by the producer or exporter of the subject merchandise 
outside the United States to an unaffiliated purchaser in the United 
States, or to an unaffiliated purchaser for exportation to the United 
States. Section 772(b) of the Act defines CEP as the price at which the 
subject merchandise is first sold inside the United States before or 
after the date of importation, by or for the account of the producer or 
exporter of the merchandise, or by a seller affiliated with the 
producer or exporter, to an unaffiliated purchaser, as adjusted under 
subsections 772(c) and (d) of the Act.
    For all respondents, we calculated EP and CEP, as appropriate, 
based on the

[[Page 38296]]

packed prices charged to the first unaffiliated customer in the United 
States.
    In accordance with section 772(c)(2) of the Act, we calculated the 
EP and CEP by deducting movement expenses and export taxes and duties 
from the starting price, where appropriate. Section 772(d)(1) of the 
Act provides for additional adjustments to CEP. Accordingly, for CEP 
sales we also reduced the starting price by direct and indirect selling 
expenses incurred in the United States and an amount for profit.
    We determined the EP or CEP for each company as follows:

TIPCO

    For TIPCO's U.S. sales, the merchandise was sold either directly by 
TIPCO or indirectly through its U.S. affiliate, TIPCO Marketing Co. 
(TMC), to the first unaffiliated purchaser in the United States prior 
to importation. We calculated an EP for all of TIPCO's sales because 
CEP was not otherwise warranted based on the facts of record. Although 
TMC is a company legally incorporated in the United States, the company 
does not have either business premises or employees in the United 
States. TIPCO employees based in Bangkok conduct all of TMC's 
activities out of TIPCO's Bangkok headquarters, including invoicing, 
paperwork processing, receipt of payment, and arranging for customs and 
brokerage. Accordingly, as the merchandise was sold before importation 
by TMC outside the United States, we have determined these sales to be 
EP transactions. See Circular Welded Non-Alloy Steel Pipe from Mexico: 
Final Results of Antidumping Duty Administrative Review, 65 FR 37518 
(June 15, 2000) and accompanying Decision Memorandum at Hylsa Comment 
3.
    We calculated EP based on the packed free on board (FOB) or cost, 
insurance, and freight (CIF) price to unaffiliated purchasers in the 
United States. In accordance with section 772(c)(2)(A) of the Act, we 
made deductions from the starting price for foreign movement expenses 
(including brokerage and handling, port charges, stuffing expenses, and 
inland freight), international freight, U.S. customs duties, and U.S. 
brokerage and handling. See Analysis Memorandum for The Thai Pineapple 
Public Co., Ltd. dated June 20, 2003 (TIPCO Analysis Memorandum).

Vita

    We calculated an EP for all of Vita's sales because the merchandise 
was sold directly by Vita outside the United States to the first 
unaffiliated purchaser in the United States prior to importation, and 
CEP was not otherwise indicated. We calculated EP based on the packed 
FOB price to unaffiliated purchasers in the United States. In 
accordance with section 772(c)(2)(A) of the Act, we made deductions 
from the starting price for foreign movement expenses (including 
brokerage and handling, terminal handling charge, bill of lading fee, 
customs clearance (shipping) charge, port charges, document 
legalization fee, stuffing expenses, inland freight and other 
miscellaneous charges). See Analysis Memorandum for Vita Food Factory 
(1989) Co., Ltd., dated June 20, 2003 (Vita Analysis Memorandum).

Kuiburi

    We calculated an EP for all of Kuiburi's sales because the 
merchandise was sold directly by Kuiburi outside the United States to 
the first unaffiliated purchaser in the United States prior to 
importation, and CEP was not otherwise indicated. We calculated EP 
based on the packed FOB or Cost and Freight (CFR) price to unaffiliated 
purchasers in the United States. In accordance with section 
772(c)(2)(A) of the Act, we made deductions from the starting price for 
foreign movement expenses and international freight. See Analysis 
Memorandum for Kuiburi Fruit Canning Company Limited, dated June 20, 
2003 (Kuiburi Analysis Memorandum).

SIFCO

    We calculated an EP for all of SIFCO's sales because the 
merchandise was sold directly by SIFCO outside the United States to the 
first unaffiliated purchaser in the United States prior to importation, 
and CEP was not otherwise indicated. We calculated EP based on the 
packed, FOB or CFR price to unaffiliated purchasers in the United 
States. In accordance with section 772(c)(2)(A) of the Act, we made 
deductions from the starting price for foreign movement expenses 
including inland freight (which consisted of handling charges, port/
gate charges, stuffing charges, document charges, truck costs, and U.S. 
brokerage and handling) and international freight. See Analysis 
Memorandum for Siam Fruit Canning (1988) Co., Ltd., dated June 20, 2003 
(SIFCO Analysis Memorandum).

Malee

    For Malee's U.S. sales, the merchandise was sold indirectly through 
a U.S. affiliate to the first unaffiliated purchaser in the United 
States prior to importation. We calculated an EP for all of Malee's 
sales because CEP was not otherwise warranted based on the facts of 
record. Although Malee's U.S. affiliate is a company legally 
incorporated in the United States, the company merely acts as a 
processor of documents, including arranging for merchandise clearance 
in the United States and contacting the customer for pick up. Malee 
negotiates U.S. sales through its Thailand headquarters and issues the 
U.S. affiliate's invoices to the U.S. customer. Accordingly, as the 
merchandise was sold before importation by Malee outside the United 
States, we have determined these sales to be EP transactions. See 
Canned Pineapple Fruit from Thailand: Final Results of Antidumping Duty 
Administrative Review, 66 FR 52744 (October 17, 2001) and accompanying 
Decision Memo at TIPCO Comment 16. See also Circular Welded Non-Alloy 
Steel Pipe from Mexico: Final Results of Antidumping Duty 
Administrative Review, 65 FR 37518 (June 15, 2000) and accompanying 
Decision Memo at Hylsa Comment 3.
    We calculated EP based on the packed CIF ex-dock price to 
unaffiliated purchasers in the United States. We made deductions for 
foreign inland movement expenses, insurance and international freight 
in accordance with section 772(c)(2)(A) of the Act. These include 
inland freight from plant to port of exportation, foreign brokerage and 
handling, other miscellaneous foreign port charges, international 
freight, marine insurance, U.S. customs brokerage, U.S. customs duty, 
harbor maintenance fees and merchandise processing fees. See Analysis 
Memorandum for Malee Sampran Public Co., Ltd., dated June 20, 2003 
(Malee Analysis Memorandum).

Dole

    For this POR, the Department found that all of Dole's U.S. sales 
were properly classified as CEP transactions because these sales were 
made in the United States by Dole Packaged Foods (DPF), a division of 
Dole.
    CEP was based on DPF's price to unaffiliated purchasers in the 
United States. We made deductions from the starting price for discounts 
in accordance with section 351.401(c) of the Department's regulations. 
We also made deductions for foreign inland movement expenses, insurance 
and international freight in accordance with section 772(c)(2)(A) of 
the Act. Because all of Dole's sales were CEP, in accordance with 
section 772(d)(1) of the Act, we deducted from the starting price those 
selling expenses associated with selling the subject merchandise in the 
United States, including direct and

[[Page 38297]]

indirect selling expenses incurred by DPF in the United States. We also 
deducted from the starting price an amount for profit in accordance 
with section 772(d)(3) of the Act. See Analysis Memorandum for Dole, 
dated June 20, 2003 (Dole Analysis Memorandum).

Normal Value

A. Selection of Comparison Markets

    Based on a comparison of the aggregate quantity of home market 
sales and U.S. sales, we determined that, with the exception of Malee, 
the quantity of foreign like product each respondent sold in Thailand 
did not permit a proper comparison with the sales of the subject 
merchandise to the United States because the quantity of each company's 
sales in its home market was less than 5 percent of the quantity of its 
sales to the U.S. market. See section 773(a)(1) of the Act. Therefore, 
for all respondents except Malee, in accordance with section 
773(a)(1)(B)(ii) of the Act, we based NV on the price at which the 
foreign like product was first sold for consumption in each 
respondent's largest viable third-country market, i.e., Germany for 
Vita, France for SIFCO, Canada for Dole, Canada for Kuiburi, and 
Germany for TIPCO. With respect to Malee, we based NV on the price at 
which the foreign like product was first sold for consumption in the 
home market.

B. Cost of Production Analysis

    Pursuant to section 773(b)(1) of the Act, we initiated a COP 
investigation of comparison markets for each respondent. Because we 
disregarded sales that failed the cost test in the last completed 
review for TIPCO, TPC, Malee, Kuiburi, SIFCO, Dole, and Vita, we had 
reasonable grounds to believe or suspect that sales by these companies 
of the foreign like product under consideration for the determination 
of NV in this review were made at prices below the COP, as provided by 
section 773(b)(2)(A)(ii) of the Act.\18\ As a result, we initiated an 
investigation of sales below cost for each of these companies. We 
conducted the COP analysis as described below.
---------------------------------------------------------------------------

    \18\ The 2000/2001 review was not completed until five months 
after the current review was initiated. Therefore, at the time the 
questionnaires were issued, we initiated the COP investigations 
based on the results of the completed 1999/2000 review. See Notice 
of Final Results of Antidumping Duty Administrative Review and 
Recession of Administrative Review in Part: Canned Pineapple Fruit 
From Thailand, 66 FR 52744 (October 17, 2001).
---------------------------------------------------------------------------

1. Calculation of COP/Fruit Cost Allocation
    In accordance with section 773(b)(3) of the Act, for each 
respondent, we calculated the weighted-average COP, by model, based on 
the sum of the costs of materials, fabrication, selling, general and 
administrative (SG&A) expenses, interest expense, and packing costs. We 
relied on the submitted COPs except in the specific instances noted 
below, where the submitted costs were not appropriately quantified or 
valued.
    The Department's long-standing practice, now codified at section 
773(f)(1)(A) of the Act, is to rely on a company's normal books and 
records if such records are in accordance with home country generally 
accepted accounting principles (GAAP) and reasonably reflect the costs 
associated with production of the merchandise. In addition, as the 
statute indicates, the Department considers whether an accounting 
methodology, particularly an allocation methodology, has been 
historically used by the company. See section 773(f)(1)(A) of the Act. 
In previous segments of this proceeding, the Department has determined 
that joint production costs (i.e., pineapple and pineapple processing 
costs) cannot be reasonably allocated to canned pineapple on the basis 
of weight. See Final Determination of Sales at Less Than Fair Value: 
Canned Pineapple Fruit From Thailand, 60 FR 29553, 29561 (June 5, 
1995),\19\ and Notice of Final Results of Antidumping Duty 
Administrative Review: Canned Pineapple Fruit From Thailand, 63 FR 
7392, 7398 (February 13, 1998). For instance, cores and shells are used 
in juice production, while trimmed and cored pineapple cylinders are 
used in CPF production. Because these various parts of a pineapple are 
not interchangeable when it comes to CPF versus juice production, it 
would be unreasonable to value all parts of the pineapple equally by 
using a weight-based allocation methodology.
---------------------------------------------------------------------------

    \19\ This determination was upheld by the Court of Appeals for 
the Federal Circuit. The Thai Pineapple Public Co. v. United States, 
187 F.3d 1362 (Fed. Cir. 1999) (finding that the Department's cost 
allocation methodology in the original investigation was reasonable 
and supported by substantial evidence).
---------------------------------------------------------------------------

    Several respondents that revised their fruit cost allocation 
methodologies during the 1995/1996 POR changed from their historical 
net realizable value (NRV) methodology to weight-based methodologies 
and did not incorporate any measure of the qualitative factor of the 
different parts of the pineapple. As a result, such methodologies, 
although in conformity with Thai GAAP, do not reasonably reflect the 
costs associated with production of CPF. Therefore, for companies whose 
fruit cost allocation methodology is weight-based, we requested that 
they recalculate fruit costs allocated to CPF based on NRV methodology.
    Consistent with prior segments of this proceeding, the NRV 
methodology that we requested respondents to use was based on company-
specific historical amounts for sales and separable costs during the 
five-year period of 1990 through 1994. We made the following company-
specific adjustments to the cost data submitted in this review.
SIFCO
    We adjusted SIFCO's calculation of general and administrative (G&A) 
expenses and interest expenses as a ratio of its cost of goods sold. 
SIFCO included SG&A expenses, interest expenses, and packing expenses 
in the denominator of its original calculation of G&A and interest 
expenses. We recalculated the ratios after adjusting the denominator to 
deduct these costs. See SIFCO Analysis Memorandum.
Malee
    In past reviews, we have not asked Malee to submit NRV because 
Malee allocated fruit costs on a basis that reasonably took into 
account qualitative differences between pineapple parts used in CPF 
versus juice products in its normal accounting records. For this 
review, it has changed the way it allocates fruit costs in its normal 
accounting records. However, we do not accept the methodologies Malee 
submitted for this review for the reasons outlined in the Malee 
Analysis Memorandum. Therefore, we calculated Malee's fruit costs for 
this review using Malee's standard allocation methodology that we have 
used in prior reviews.
Kuiburi
    Since the first administrative review of CPF from Thailand the 
Department has utilized a NRV methodology to allocate pineapple fruit 
costs among joint products. Under this methodology, the separable costs 
for each joint product are subtracted from the gross revenue for each 
joint product. The ratio of the net realizable value of each joint 
product to the total net realizable value of all products is then used 
as the allocation base. Kuiburi reported two NRV methodologies in its 
response, one based on an historical period and the other based on a 
five-year period of 1997 through 2001. For the following reasons, we 
have found that Kuiburi's reported NRV methodologies were

[[Page 38298]]

unusable for the purposes of the dumping analysis. Both methodologies 
used by Kuiburi were based solely on revenue; that is, they did not 
factor in separable costs in determining the NRV for each product. 
Moreover, for Kuiburi's historical NRV methodology, it was unable to 
provide separable cost information; Kuiburi's joint cost allocation 
methodology did not comport with the Department's established NRV 
methodology. Kuiburi's NRV methodology based on a floating five-year 
period beginning in 1997 and ending in 2001 was unusable for dumping 
purposes because it was based on prices from a time period when the 
Department had determined that CPF was being sold at LTFV. See Notice 
of Final Results of Antidumping Duty Administrative Review: Canned 
Pineapple from Thailand, 63 FR 7392 (February 13, 1998). Because 
Kuiburi's reported NRV methodologies are unusable, we have, pursuant to 
section 776(a)(1) of the Act, determined to apply FA. As a facts 
available for Kuiburi's NRV methodology, we averaged Dole, TIPCO, 
SIFCO, and Vita's historical NRVs and utilized it for Kuiburi's 
applicable costs. See Kuiburi Analysis Memorandum.
2. Test of Comparison Market Sales Prices
    As required under section 773(b) of the Act, we compared the 
adjusted weighted-average COP for each respondent to the comparison 
market sales of the foreign like product, in order to determine whether 
these sales had been made at prices below the COP within an extended 
period of time in substantial quantities, and whether such prices were 
sufficient to permit the recovery of all costs within a reasonable 
period of time. On a product-specific basis, we compared the revised 
COP to the comparison market prices, less any applicable movement 
charges, taxes, rebates, commissions and other direct and indirect 
selling expenses.
3. Results of the COP Test
    Pursuant to section 773(b)(2)(C) of the Act, where less than 20 
percent of a respondent's sales of a given product were made at prices 
below the COP, we do not disregard any below-cost sales of that product 
because the below-cost sales were not made in ``substantial 
quantities.'' Where (1) 20 percent or more of a respondent's sales of a 
given product were made at prices below the COP and such sales were 
made over an extended period of time in substantial quantities in 
accordance with sections 773(b)(2)(B) and (C) of the Act; and, (2) 
based on comparisons of price to weighted-average COPs for the POR, we 
determine that the below-cost sales of the product were at prices which 
would not permit recovery of all costs within a reasonable time period, 
in accordance with section 773(b)(2)(D) of the Act, we disregard the 
below-cost sales.
    We found that for certain CPF products, Dole, Kuiburi, TIPCO, 
Malee, SIFCO, and Vita made comparison-market sales at prices below the 
COP within an extended period of time in substantial quantities. 
Further, we found that these sales prices did not permit the recovery 
of costs within a reasonable period of time. We therefore excluded 
these sales from our analysis in accordance with section 773(b)(1) of 
the Act.

C. Calculation of Normal Value Based on Comparison Market Prices

    We determined price-based NVs for each company as follows. For all 
respondents, we made adjustments for differences in packing in 
accordance with sections 773(a)(6)(A) and 773(a)(6)(B)(i) of the Act, 
and we deducted movement expenses consistent with section 
773(a)(6)(B)(ii) of the Act. In addition, where applicable, we made 
adjustments for differences in cost attributable to differences in 
physical characteristics of the merchandise pursuant to section 
773(a)(6)(C)(ii) of the Act, as well as for differences in 
circumstances of sale (COS) in accordance with section 
773(a)(6)(C)(iii) of the Act and section 351.410 of the Department's 
regulations. We also made adjustments, in accordance with section 
351.410(e) of the Department's regulations, for indirect selling 
expenses incurred on comparison market or U.S. sales where commissions 
were granted on sales in one market but not in the other (the 
``commission offset''). Specifically, where commissions were granted in 
the U.S. market but not in the comparison market, we made a downward 
adjustment to NV for the lesser of (1) the amount of the commission 
paid in the U.S. market, or (2) the amount of indirect selling expenses 
incurred in the comparison market. If commissions were granted in the 
comparison market but not in the U.S. market, we made an upward 
adjustment to NV following the same methodology. Company-specific 
adjustments are described below.
TIPCO
    We based third-country market prices on the packed, FOB prices to 
unaffiliated purchasers in Germany. We adjusted for the following 
movement expenses: Brokerage and handling, port charges, stuffing 
expenses, liner expenses and foreign inland freight. We made COS 
adjustments by deducting direct selling expenses incurred for third-
country market sales (commissions, credit expenses, and bank charges) 
and adding U.S. direct selling expenses (commissions, credit expenses, 
and bank charges).
Vita
    We based third-country market prices on the packed, FOB and CFR 
prices to unaffiliated purchasers in Germany. We adjusted for the 
following movement expenses: international freight, inland freight, 
terminal handling charges, container stuffing charges, bill of lading 
fees, customs clearance charges, port charges, document legalization 
fees and other miscellaneous charges. We made COS adjustments by 
deducting direct selling expenses incurred for third-country market 
sales (credit expenses, commissions, and bank charges) and adding U.S. 
direct selling expenses (credit expenses, commissions, and bank 
charges).
SIFCO
    We based third-country market prices on the packed, FOB or CFR 
prices to unaffiliated purchasers in France. We adjusted for foreign 
movement expenses and international freight. We made COS adjustments by 
deducting direct selling expenses incurred for third-country market 
sales (credit expenses, bank charges, and commissions) and adding U.S. 
direct selling expenses (credit expenses, bank charges, and 
commissions).
Kuiburi
    We based third-country market prices on the packed, FOB and CFR 
prices to unaffiliated purchasers in Canada. We adjusted for foreign 
movement and international freight expenses. We made COS adjustments by 
deducting direct selling expenses incurred for third-country market 
sales (credit expenses, bank charges, and commissions) and adding U.S. 
direct selling expenses (credit expenses, bank charges, and 
commissions).
Malee
    We based home market prices on the packed, delivered prices to 
unaffiliated purchasers in Thailand. We adjusted for foreign inland 
freight and warehousing. We made COS adjustments by deducting direct 
selling expenses incurred for home market sales (credit expenses, 
advertising expenses, and commissions) and adding U.S. direct selling 
expenses (credit expenses, advertising expenses, and commissions). We 
also made a level of

[[Page 38299]]

trade (LOT) adjustment where appropriate. See the Level of Trade 
section, below.
Dole
    We based third-country market prices on Dole Foods of Canada Ltd.'s 
(DFC) prices to unaffiliated purchasers in Canada. We adjusted for 
foreign movement expenses and international freight. We made COS 
adjustments by deducting direct selling expenses incurred for third-
country market sales (credit expenses, warranty, advertising, 
royalties, and commissions) and adding U.S. direct selling expenses 
(credit expenses, advertising, warranty, and commissions).We adjusted 
Dole's Canadian interest rate so that it reflects the one month prime 
commercial paper rate published by the Bank of Canada instead of the 
prime business rate which Dole had used to calculate credit expenses. 
In addition, because the NV LOT is more remote from the factory than 
the CEP LOT (see the Level of Trade section, below), and available data 
provide no appropriate basis to determine a LOT adjustment between NV 
and CEP, we made a CEP offset pursuant to section 773(a)(7)(B) of the 
Act.

D. Calculation of Normal Value Based on Constructed Value

    In accordance with section 773(e) of the Act, we calculated CV 
based on the sum of the COM of the product sold in the United States, 
plus amounts for SG&A expenses, interest expenses, comparison market 
profit, and U.S. packing costs. We calculated each respondent's CV 
based on the methodology described in the Calculation of COP section of 
this notice, above. In accordance with section 773(e)(2)(A) of the Act, 
we used the actual amounts incurred and realized by each respondent in 
connection with the production and sale of the foreign like product, in 
the ordinary course of trade, for consumption in the comparison market 
to calculate SG&A expenses and comparison market profit.
    Where we compared U.S. price to CV, we made adjustments to CV for 
COS differences, in accordance with section 773(a)(8) of the Act and 
section 351.410 of the Department's regulations, and as described under 
the Calculation of Normal Value section above. We made COS adjustments 
by deducting direct selling expenses incurred on comparison market 
sales and adding U.S. direct selling expenses for comparison to EP 
transactions in the United States. We did not compare U.S. price to CV 
for Kuiburi or TIPCO because all U.S. sales were compared to 
contemporaneous sales of identical or similar merchandise in the 
ordinary course of trade. For the other companies--Vita, Malee, Sifco 
and Dole--we compared U.S. price to CV.

Level of Trade

    In accordance with section 773(a)(1)(B) of the Act, to the extent 
practicable, we determine NV based on sales in the comparison market at 
the same LOT as the EP or CEP transaction. The NV LOT is that of the 
starting price sales in the comparison market or, when NV is based on 
CV, that of the sales from which we derive SG&A expenses and profit. 
For EP sales, the U.S. LOT is also the level of the starting price 
sale, which is usually from exporter to importer. For CEP sales, it is 
the level of the constructed sale from the exporter to the importer.
    To determine whether NV sales are at a different LOT than EP or CEP 
transactions, we examine stages in the marketing process and selling 
functions along the chain of distribution between the producer and the 
unaffiliated customer. If the comparison market sales are at a 
different LOT, and the difference affects price comparability, as 
manifested in a pattern of consistent price differences between the 
sales on which NV is based and comparison market sales at the LOT of 
the export transaction, we make a LOT adjustment under section 
773(a)(7)(A) of the Act. Finally, for CEP sales, if the NV LOT is more 
remote from the factory than the CEP LOT and there is no basis for 
determining whether the difference in the LOTs between NV and CEP 
affects price comparability, we adjust NV under section 773(a)(7)(B) of 
the Act (the CEP offset provision). See Final Determination of Sales at 
Less Than Fair Value: Greenhouse Tomatoes From Canada, 67 FR 8781 
(February 26, 2002).
    In implementing these principles in this review, we obtained 
information from each respondent about the marketing stage involved in 
the reported U.S. and comparison market sales, including a description 
of the selling activities performed by the respondents for each channel 
of distribution. In identifying levels of trade for EP and comparison 
market sales, we considered the selling functions reflected in the 
starting price before any adjustments. For CEP sales, we considered 
only the selling activities reflected in the price after the deduction 
of expenses and profit under section 772(d) of the Act. We expect that, 
if claimed LOTs are the same, the functions and activities of the 
seller should be similar. Conversely, if a party claims that LOTs are 
different for different groups of sales, the functions and activities 
of the seller should be dissimilar.
    In this review, all respondents except Malee and Dole claimed that 
all of their sales involved identical selling functions, irrespective 
of channel of distribution or market. We examined these selling 
functions for Vita, SIFCO, TIPCO, and Kuiburi, and found that sales 
activities were limited to negotiating sales prices, processing of 
purchase orders/contracts, invoicing, and collecting payment. There was 
little or no strategic and economic planning, advertising or sales 
promotion, technical services, technical assistance, or after-sale 
service performed in either market by the respondents. Therefore, for 
all respondents except Malee and Dole, we have preliminarily found that 
there is an identical LOT in the U.S. and relevant comparison market, 
and no LOT adjustment is required for comparison of U.S. sales to 
comparison market sales.

Malee

    Malee reported that all of its sales made to the United States were 
to distributors and involved minimal selling functions on the part of 
Malee. Malee reported two different channels of distribution for its 
sales in the home market: (1) Sales through an affiliated reseller, 
Malee Enterprise Co. Ltd. (Malee Enterprise), which are made at a more 
advanced marketing stage than the factory-direct sales, and (2) 
factory-direct sales involving minimal selling functions and which are 
at a marketing stage identical to that of the CEP transactions after 
deductions.
    In the home market, Malee reported numerous selling functions 
undertaken by Malee Enterprise for its resales to small wholesalers, 
retailers, and end-users. In addition to maintaining inventory, Malee 
Enterprise also handled all advertising during the POR. The advertising 
was directed at the ultimate consumer. Malee also reported that Malee 
Enterprise replaces damaged or defective merchandise and, as necessary, 
breaks down packed cases into smaller lot sizes for many sales. Malee 
made direct sales to industrial users. Malee claimed that its only 
selling function on direct sales was delivery of the product to the 
customer.
    Our examination of the selling activities, selling expenses, and 
customer categories involved in these two channels of distribution 
indicates that they constitute separate levels of trade, and that the 
direct sales are made at the same level as Malee's U.S. sales. Where 
possible, we compared sales at Malee's U.S. LOT to sales at the

[[Page 38300]]

identical home market LOT. If no match was available at the same LOT, 
we compared sales at Malee's U.S. LOT to Malee's sales through Malee 
Enterprise at the more advanced LOT.
    To determine whether a LOT adjustment was warranted, we examined 
the prices of comparable product categories, net of all adjustments, 
between sales at the two home market LOTs we had designated. We found a 
pattern of consistent price differences between sales at these LOTs. In 
making the LOT adjustment, we calculated the difference in weighted-
average prices between the two different home market LOTs. Where U.S. 
sales were compared to home market sales at a different LOT, we reduced 
the home market price by the amount of this calculated LOT difference.

Dole

    Dole reported six specific customer categories and one channel of 
distribution (sales through an affiliated reseller) for its comparison 
market and seven specific customer categories and one channel of 
distribution (sales through an affiliated reseller) for its U.S. sales. 
In its response, Dole claims, and the Department concurs, that all of 
its sales to unaffiliated comparison market customers (i.e., the six 
customer categories) are at the same LOT because these sales are made 
through the same channel of distribution and involve the same selling 
functions.
    Dole had only CEP sales in the U.S. market. Dole reported that its 
CEP sales were made through a single channel of distribution (i.e., 
sales through its U.S. affiliate, Dole Packaged Foods (DPF)), which we 
have treated as one LOT because there is no apparent difference in the 
selling functions performed by DPF for the different customers. After 
making the appropriate deductions under section 772(d) of the Act for 
these CEP sales, we found that the remaining expenses associated with 
selling activities performed by Dole are limited to expenses related to 
the arrangement of freight and delivery to the port of export that are 
reflected in the CEP price. In contrast, the NV prices include a number 
of selling expenses attributable to selling activities performed by DFC 
in the comparison market, such as inventory maintenance, warehousing, 
delivery, order processing, advertising, rebate and promotional 
programs, warranties, and market research. Accordingly, we concluded 
that CEP is at a different LOT from the NV LOT, i.e., the CEP sales are 
less remote from the factory than are the NV sales.
    Having determined that the comparison market sales were made at a 
level more remote from the cannery than the CEP transactions, we then 
examined whether a LOT adjustment or CEP offset may be appropriate. In 
this case, Dole only sold at one LOT in the comparison market; 
therefore, there is no information available to determine a pattern of 
consistent price differences between the sales on which NV is based and 
the comparison market sales at the LOT of the export transaction, in 
accordance with the Department's normal methodology as described above. 
See Porcelain-on-Steel Cookware from Mexico Final Results of 
Administrative Review, 65 FR 30068 (May 10, 2000). Further, we do not 
have information which would allow us to examine pricing patterns based 
on respondent's sales of other products, and there are no other 
respondents or other record information on which such an analysis could 
be based. Accordingly, because the data available do not provide an 
appropriate basis for making a LOT adjustment, but the LOT in the 
comparison market is at a more advanced stage of distribution than the 
LOT of the CEP transactions, we made a CEP offset adjustment in 
accordance with section 773(a)(7)(B) of the Act. This offset is equal 
to the amount of indirect expenses incurred in the comparison market 
not exceeding the amount of indirect selling expenses deducted from the 
U.S. price in accordance with 772(d)(1)(D) of the Act.

No Revocation in Part

    On July 31, 2002, Dole requested that the Department revoke the 
antidumping duty order in part as regards Dole based on the absence of 
dumping pursuant to Sec. 351.222(b)(2) of the Department's regulations. 
Dole submitted, along with its revocation request, a certification 
stating that: (1) The company did not sell subject merchandise at less 
than NV during the POR, and that in the future it would not sell such 
merchandise at less than NV (see Sec. 351.222 (e)(1)(i)) of the 
Department's regulations; (2) the company has sold subject merchandise 
to the United States in commercial quantities during each of the past 
three years (see Sec. 351.222(e)(1)(ii)) of the Department's 
regulations; and (3) the company agreed to its immediate reinstatement 
in the order, as long as any exporter or producer is subject to the 
order, if the Department concludes that the company, subsequent to the 
revocation, sold the subject merchandise at less than NV. see 
Sec. Sec. 351.222(b)(2)(i)(B) and 351.222(e)(1)(iii)) of the 
Department's regulations.
    Based on a recent redetermination currently pending review, 
pursuant to a court remand for Maui Pineapple Company, Ltd. v. United 
States and Dole Food Company, Dole Packaged Foods and Dole Thailand, 
Slip Op. 03-42 (April 17, 2003), Court No. 01-03-01017, the margin for 
the fifth POR of this proceeding has risen above de minimis. See Final 
Results of Redetermination Pursuant to United States Court of 
International Trade Remand Order Maui Pineapple Company, Ltd. v. United 
States and Dole Food Company, Dole Packaged Foods and Dole Thailand 
Court No. 01-03-01017 filed with the court on June 16, 2003. We 
preliminarily determine that Dole has failed to demonstrate that it has 
not made sales at less than NV over the past three years. Interested 
parties are invited to comment in their case briefs, inter alia, on all 
of the requirements that must be met by under Sec. 351.222 of the 
Department's regulations in order to qualify for revocation from the 
antidumping duty order. Based on the above, the Department 
preliminarily determines that the continued application of the order 
with regard to Dole is necessary to offset dumping. Therefore, if these 
preliminary findings are adopted in our final results, we will not 
revoke the order with respect to merchandise produced and exported by 
Dole.

Currency Conversion

    We made currency conversions into U.S. dollars in accordance with 
section 773A of the Act, based on exchange rates in effect on the dates 
of the U.S. sales as certified by the Federal Reserve Bank.

Preliminary Results of Review

    As a result of this review, we preliminarily determine that the 
following weighted-average margins exist for the period July 1, 2001, 
through June 30, 2002:

------------------------------------------------------------------------
                                                                Margin
                   Manufacturer/exporter                      (percent)
------------------------------------------------------------------------
Dole Food Company, Inc. (Dole).............................         0.49
The Thai Pineapple Public Company, Ltd. (TIPCO)............         0.12
Kuiburi Fruit Canning Co. Ltd. (Kuiburi)...................         0.40
Thai Pineapple Canning Industry (TPC)......................        51.16
Siam Fruit Canning (1988) Co. Ltd. (SIFCO).................         8.39
Vita Food Factory (1989) Co. Ltd. (Vita)...................         1.10
Malee Sampran Public Co., Ltd. (Malee).....................         7.60
------------------------------------------------------------------------


[[Page 38301]]

    We will disclose the calculations used in our analyses to parties 
to this proceeding within five days of the publication date of this 
notice. See Sec.  351.224(b) of the Department's regulations. 
Interested parties are invited to comment on the preliminary results. 
Interested parties may submit case briefs within 30 days of the date of 
publication of this notice. Rebuttal briefs, limited to issues raised 
in the case briefs, may be filed not later than 37 days after the date 
of publication. Parties who submit arguments are requested to submit 
with each argument: (1) A statement of the issue, (2) a brief summary 
of the argument, and (3) a table of authorities. Further, we would 
appreciate it if parties submitting written comments would provide the 
Department with an additional copy of the public version of any such 
comments on a diskette. Any interested party may request a hearing 
within 30 days of publication of this notice. See Sec.  351.310(c) of 
the Department's regulations. If requested, a hearing will be held 44 
days after the publication of this notice, or the first workday 
thereafter. The Department will publish a notice of the final results 
of this administrative review, which will include the results of its 
analysis of issues raised in any written comments or hearing, within 
120 days from publication of this notice.

Assessment

    Pursuant to Sec.  351.212(b) of the Department's regulations, the 
Department calculated an assessment rate for each importer of subject 
merchandise. Upon completion of this review, the Department will 
instruct the BCBP to assess antidumping duties on all entries of 
subject merchandise by those importers. We have calculated each 
importer's duty assessment rate based on the ratio of the total amount 
of antidumping duties calculated for the examined sales to the total 
entered value of examined sales. Where the assessment rate is above de 
minimis, the importer-specific rate will be assessed uniformly on all 
entries made during the POR.

Cash Deposit Requirements

    The following deposit rates will be effective upon publication of 
the final results of this administrative review for all shipments of 
CPF from Thailand entered, or withdrawn from warehouse, for consumption 
on or after the publication date, as provided by section 751(a)(1) of 
the Act: (1) The cash deposit rate for companies listed above will be 
the rate established in the final results of this review, except if the 
rate is less than 0.5 percent and, therefore, de minimis, the cash 
deposit will be zero; (2) for previously reviewed or investigated 
companies not listed above, the cash deposit rate will continue to be 
the company-specific rate published for the most recent period; (3) if 
the exporter is not a firm covered in this review, a prior review, or 
the LTFV investigation, but the manufacturer is, the cash deposit rate 
will be the rate established for the most recent period for the 
manufacturer of the merchandise; and (4) if neither the exporter nor 
the manufacturer is a firm covered in this or any previous review or 
the LTFV investigation conducted by the Department, the cash deposit 
rate will be 24.64 percent, the ``All Others'' rate established in the 
LTFV investigation.
    These cash deposit requirements, when imposed, shall remain in 
effect until publication of the final results of the next 
administrative review.
    This notice serves as a preliminary reminder to importers of their 
responsibility under Sec.  351.402(f)(2) of the Department's 
regulations to file a certificate regarding the reimbursement of 
antidumping duties prior to liquidation of the relevant entries during 
this review period. Failure to comply with this requirement could 
result in the Secretary's presumption that reimbursement of antidumping 
duties occurred and the subsequent assessment of double antidumping 
duties.
    This determination is issued and published in accordance with 
sections 751(a)(1) and 777(i)(1) of the Act.

    Dated: June 20, 2003.
Joseph A. Spetrini,
Acting Assistant Secretary for Import Administration.
[FR Doc. 03-16343 Filed 6-26-03; 8:45 am]
BILLING CODE 3510-DS-P