[Federal Register Volume 68, Number 134 (Monday, July 14, 2003)]
[Notices]
[Pages 41556-41557]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-17744]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-549-813]


Final Court Decisions and Amended Final Determination of Sales at 
Less Than Fair Value: Canned Pineapple Fruit from Thailand

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

ACTION: Notice of Final Court Decisions and Amended Final Determination 
of Sales at Less Than Fair Value.

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SUMMARY: On July 28, 1999, the United States Court of Appeals for the 
Federal Circuit (CAFC) reversed a United States Court of International 
Trade (CIT) finding that the Department wrongly allocated raw material 
costs of pineapple in its calculation of a weighted average dumping 
margin in its amended final determination of sales at less than fair 
value and held that the Department's allocation methodologies were 
reasonable and supported by substantial evidence. See Notice of 
Antidumping Duty Order and Amended Final Determination: Canned 
Pineapple Fruit From Thailand, 60 FR 36775 (July 18, 1995) (Amended 
Final Determination) and The Thai Pineapple Public Co. v. United 
States, 187 F.3d 1362 (Fed. Cir. 1999), reh'g en banc denied, 1999 US 
App LEXIS 31385 (Fed. Cir. Oct. 28, 1999), cert. denied sub nom. Dole 
Food Co. v. United States, 529 US 1097 (2000) (CAFC Decision). The CAFC 
Decision, while affirming the Department's practice with respect to the 
fruit cost allocation issue affecting the calculation, nonetheless, 
necessitated a change in the most recent calculation of the weighted 
average margin of Dole Food Company, Inc., Dole Packaged Foods Company, 
and Dole Thailand, Ltd (collectively, Dole), pursuant to a remand 
determination ordered by the CIT in The Thai Pineapple Public Co. v. 
United States, 946 F. Supp. 11 (Ct. Int'l Trade 1996) (CIT Decision I). 
As there are now final and conclusive court decisions with respect to 
the litigation pertaining to this proceeding, we are hereby amending 
our amended final determination to reflect the methodology for raw 
material allocation used by the Department in its amended final 
determination of July 18, 1995 with respect to Dole's weighted average 
margin calculation. We will, however, retain the CIT-mandated amendment 
to the calculations regarding consistent time periods (as they regard 
shipment volumes) for purposes of calculating Dole's weighted average 
margin. This change was affirmed by the CIT in The Thai Pineapple 
Public Co. v. United States, Slip Op. 97-32, 1997 Ct. Int'l Trade LEXIS 
30 (March 18, 1997)(CIT Decision II) and was not challenged before the 
CAFC.
    Currently, there are outstanding entries that were not liquidated 
as they were subject to an injunction entered pursuant to this 
litigation. As the litigation on the Amended Final Determination is now 
complete, the injunction is no longer in effect. The Department will 
subsequently instruct the U.S. Bureau of Customs and Border Protection 
(BCBP) to liquidate any outstanding Dole entries subject to the cash 
deposit rate established by this amended final determination.

EFFECTIVE DATE: July 14, 2003.

FOR FURTHER INFORMATION CONTACT: David Layton or Charles Riggle, Office 
5, Group II, AD/CVD Enforcement, Import Administration, International 
Trade Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-
0371 and (202) 482-0650, respectively.

SUPPLEMENTARY INFORMATION:

Background

    On July 18, 1995, the Department of Commerce (the Department) 
published an amended final determination of sales at less than fair 
value for canned pineapple fruit (CPF) from Thailand (A-549-813). See 
Amended Final Determination. Subsequent to our publication of this 
amended final determination, Dole challenged certain aspects of our 
margin calculation methodology for the Amended Final Determination 
before the CIT. On November 8, 1996, the CIT issued an order to the 
Department with respect to the Amended Final Determination. See CIT 
Decision I. In this order, the CIT directed the Department to use a 
consistent time period for the calculation of shipment ratios used to 
weight Dole's average dumping margin for all products from Thailand.\1\ 
The CIT also instructed the Department to correct the effective date of 
the antidumping order with respect to Dole, to consider Dole's evidence 
in support of a U.S. dollar inventory cost measure, and to use a non-
output price based methodology to allocate the raw material costs of 
pineapple between solid and non-solid outputs. Id. Only two of the 
CIT's instructions resulted in changes in Dole's weighted average 
margin calculation: the revision of the fruit cost allocation 
methodology and the change in the time periods used for calculating 
Dole's weighted average dumping margin. The Department fully complied 
with the court order in its final results of redetermination pursuant 
to the court remand. See Final Results of Redetermination Pursuant to 
Court Remand, Thai Pineapple Public Co. v. United States, Consol. Court 
No. 95-00-01064, Slip Op. 96-182 signed on February 3, 1997 and issued 
on February 4, 1997 (CIT Remand Results).

[[Page 41557]]

Id. The CIT affirmed the Department's remand determination. CIT 
Decision II.
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    \1\ Since Dole was unable to distinguish between its shipments 
to the United States of pineapple grown and canned in Thailand and 
that grown and canned in the Philippines, the Department calculated 
a dumping margin for Dole by weight-averaging the dumping margin for 
each product category according to the ratio of shipment volumes 
from Thailand over the total volume shipped to the United States 
from Thailand and the Philippines. Because the Department had 
originally used inconsistent time periods for its tally of Thai and 
Filipino shipments, the CIT instructed it to use consistent time 
periods to count the shipments used in computing the ratio. See CIT 
Remand Results at 1-2 and 4-5.
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    Although the Department complied with the CIT's instructions, the 
Department and Maui Pineapple Co., Ltd. (petitioner) appealed the CIT's 
decision to the United States Court of Appeals for the Federal Circuit 
(CAFC) only with respect to the issue of the allocation of raw material 
costs of pineapple. In a decision issued on July 28, 1999, the CAFC 
reversed the CIT finding that the Department wrongly allocated raw 
material costs of pineapple and held that the Department's allocation 
methodologies were reasonable and supported by substantial evidence. 
See CAFC Decision, 187 F.3d at 1369-70. Because the remaining issues in 
CIT Decision II were not appealed, including the timing period used to 
calculate Dole's weighted average margin calculation, those portions of 
the CIT Decision II not pertaining to the Department's fruit cost 
allocation methodology remain undisturbed by the CAFC Decision. As 
there are now final and conclusive court decisions with respect to the 
litigation pertaining to this proceeding, we are hereby amending our 
amended final determination. As described above, any outstanding 
entries are no longer subject to an injunction. We will instruct BCBP 
to liquidate any outstanding entries subject to the cash deposit rate 
established by this revised final determination.

Amendment To Final Determinations

    Pursuant to 19 U.S.C. 1516(f), we are now amending the amended 
final determination of sales at less than fair value to reflect a 
revised weighted average margin for Dole. The revised weighted-average 
margin for Dole in the antidumping determination on canned pineapple 
from Thailand (A-549-813) for the period January 1, 1994 through June 
30, 1994 is 1.25 percent. Accordingly, the Department will determine 
and the BCBP will assess appropriate antidumping duties on entries of 
the subject merchandise made by firms covered by the review of the 
period listed above. The Department will issue appraisement 
instructions directly to the BCBP within 15 days of the publication of 
this notice.

    Dated: July 8, 2003.
Jeffrey May,
Acting Assistant Secretary for Import Administration.
[FR Doc. 03-17744 Filed 7-11-03; 8:45 am]
BILLING CODE 3510-DS-S