[Federal Register Volume 71, Number 195 (Tuesday, October 10, 2006)]
[Notices]
[Pages 59430-59432]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-16815]


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DEPARTMENT OF COMMERCE

International Trade Administration

(A-549-813)


Initiation of Antidumping Duty Administrative Review: Canned 
Pineapple Fruit from Thailand

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.
SUMMARY: On August 30, 2006, the Department of Commerce (the 
Department) initiated an administrative review of the antidumping duty 
order on canned pineapple fruit (CPF) from Thailand. See Initiation of 
Antidumping and Countervailing Duty Administrative Reviews and Requests 
for Revocation in Part, 71 FR 51573 (August 30, 2006) (Initiation 
Notice). In that notice, the Department did not initiate a review of 
Tropical Food Industries Co. Ltd. (TROFCO) because the company's 
request for review was untimely filed. After considering the facts on 
the record, the Department is now initiating a review of TROFCO.

EFFECTIVE DATE: October 10, 2006.

[[Page 59431]]


FOR FURTHER INFORMATION CONTACT: Magd Zalok or Howard Smith, AD/CVD 
Operations, Office 4, Import Administration, International Trade 
Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW, Washington, DC 20230, telephone: (202) 482-
4162 and (202) 482-5193, respectively.

SUPPLEMENTARY INFORMATION:

Background

    On July 3, 2006, the Department published in the Federal Register a 
notice of ``Opportunity to Request Administrative Review'' of the 
antidumping duty order on CPF from Thailand. See Antidumping or 
Countervailing Duty Order, Finding, or Suspended Investigation; 
Opportunity To Request Administrative Review, 71 FR 37890 (July 3, 
2006). The Department received a request for review from one producer/
exporter, Vita Food Factory (1989) Ltd. (Vita), by the July 31, 2006 
deadline, and initiated a review of Vita on August 30, 2006 (see 
Initiation Notice, 71 FR 51573).
    On August 9, 2006, the Department received an untimely request for 
a review from the exporter/producer TROFCO. On September 5, 2006, we 
notified TROFCO that its review request was untimely filed, and thus we 
did not initiate a review of TROFCO. On September 18, 2006, the 
Department received a letter from DHL Express, the company used by 
TROFCO to transmit its review request, explaining that TROFCO sent its 
review request on July 22, 2006, and it should have been delivered to 
the Department, at the latest, by July 26, 2006; however, due to a 
delivery error by DHL, the request was not delivered to the Department 
until August 9, 2006. On September 20, 2006, TROFCO submitted a letter 
to the Department with a copy of the shipment/airwaybill and DHL 
tracking information showing that the request for review was correctly 
addressed but was initially delivered to the wrong address by DHL.\1\ 
On September 26, 2006, petitioners\2\ submitted a letter to the 
Department contending that the Department may not now initiate an 
administrative review of TROFCO because neither statutorily-required 
condition precedent to conducting an administrative review was 
satisfied; namely, the Department did not receive a timely review 
request from TROFCO, and did not publish a notice initiating a review 
of TROFCO.\3\ See section 751 (a)(1) of the Tariff Act of 1930, as 
amended, (the Act) and 19 CFR Sec.  351.103(b).
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    \1\ The Department rejected TROFCO's earlier attempt to file 
this submission because it was improperly filed. See the memorandum 
to the file from Magd Zalok dated concurrently with this notice.
    \2\ The petitioners are Maui Pineapple Company Ltd. and the 
International Longshoreman's and Warehouseman's Union.
    \3\ In support of their argument, the petitioners cite, among 
other cases, Cosco Home and Office Products v. United States, 350 F. 
Supp. 2d 1294 (Dec. 7, 2004), in which the Court of International 
Trade affirmed the Department's decision not to initiate an 
administrative review where there was no evidence that an exporter 
had filed a review request with the Department's Docket Center. 
Petitioners also cite to Pure Magnesium and Alloy Magnesium from 
Canada; Preliminary Results of Countervailing Duty Administrative 
Review, 70 FR 24530 (May 10, 2005), in which the Department rejected 
an exporter's review request filed one day late but continued the 
review based on petitioner's timely review request.
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Initiation of Review

    Although TROFCO's review request was not received by the Department 
until after the deadline for requesting an administrative review, the 
record of this proceeding indicates that if not for an error by DHL, 
TROFCO's review request would have been received by the Department on 
or before the deadline. Specifically, in DHL's September 18, 2006 
letter to the Department a DHL official certified that TROFCO's review 
request was sent to the Department via DHL on July 22, 2006 and, under 
normal circumstances, should have been delivered to the Department by 
July 26, 2006 (five days before the July 31, 2006 deadline). Moreover, 
the tracking information supplied to the Department by TROFCO shows 
that the review request was received at a location near Washington D.C. 
on July 25, 2006 (i.e. Arlington Virginia), six days before the 
deadline for requesting a review.\4\ Lastly, we note that TROFCO sent 
its review request to the petitioners' counsel via DHL on the same day 
that it sent the request to the Department via DHL, and the request was 
delivered to the petitioners' counsel in the Washington D.C. area on 
July 25, 2006, six days before the review request was to be filed with 
the Department. While TROFCO's service of its review request on 
petitioners' counsel does not constitute an official filing, and the 
Department is not initiating a review of TROFCO based upon that 
service, delivery of that request before the July 31, 2006 deadline 
provides further support to conclude that TROFCO's request would have 
been delivered to the Department in a timely fashion but for the 
delivery error acknowledged by DHL. Although the Department's practice 
is to reject untimely requests for review, it nonetheless retains some 
flexibility to, where appropriate, relax its procedural rules. See 
Ferro Union, Inc. and Asoma Corporation v. United States, 44 F. Supp. 
2d 1310, 1316 (CIT 1999) citing American Farm Lines v. Black Ball 
Freight Service, 397 U.S. 532, (1970)(``{i{time} t is always within the 
discretion of a court or an administrative agency to relax or modify 
its procedural rules adopted for the orderly transaction of business 
before it when in a given case the ends of justice require it.''). See 
also Notice of Initiation of Expedited Reviews of the Countervailing 
Duty Order: Certain Softwood Lumber Products from Canada, 67 FR 59252 
(September 20, 2002) (accepting untimely filed requests for expedited 
reviews because the respondents made a good faith effort to properly 
file the requests and the requests were untimely for reasons beyond 
their control). Given the facts in this case, we have determined that 
it is appropriate to initiate an administrative review of the 
antidumping duty order on canned pineapple fruit from Thailand, for the 
period July 1, 2005 through June 30, 2006, with respect to TROFCO. We 
intend to issue the final results of this administrative review no 
later than July 31, 2007.
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    \4\ DHL apparently initially delivered the review request to the 
wrong address, despite the fact that the shipment/airway bill lists 
``Import Administration Central Records Unit, Room B-099, U.S. 
Department of Commerce Pennsylvania Avenue and 14\th\ Street, N.W. 
Washington D.C. 20230'' as the delivery address.
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    During any administrative review covering all or part of a period 
falling between the first and second or third and fourth anniversary of 
the publication of an antidumping order under 19 CFR Sec.  351.211 or a 
determination under 19 CFR Sec.  351.218(f)(4) to continue an order or 
suspended investigation (after sunset review), the Secretary, if 
requested by a domestic interested party within 30 days of the date of 
publication of the notice of initiation of the review, will determine, 
consistent with FAG Italia v. United States, 291 F.3d 806 (Fed. Cir. 
2002), as appropriate, whether antidumping duties have been absorbed by 
an exporter or producer subject to the review if the subject 
merchandise is sold in the United States through an importer that is 
affiliated with such exporter or producer. The request must include the 
name(s) of the exporter or producer for which the inquiry is requested.
    Interested parties must submit applications for disclosure under 
administrative protective orders in accordance with 19 CFR Sec.  
351.305.
    This initiation and this notice are in accordance with section 
751(a) of the Act and 19 CFR Sec.  351.221(c)(1)(i).


[[Page 59432]]


    Dated: October 4, 2006.
Thomas F. Futtner,
Acting Office Director, AD/CVD Operations, Office 4, Import 
Administration.
[FR Doc. E6-16815 Filed 10-6-06; 8:45 am]
BILLING CODE 3510-DS-S