[Federal Register Volume 72, Number 247 (Thursday, December 27, 2007)]
[Notices]
[Pages 73318-73321]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-25057]


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DEPARTMENT OF COMMERCE

International Trade Administration

(A-549-813)


Canned Pineapple Fruit from Thailand: Preliminary Results of 
Antidumping Duty New Shipper Review

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.
SUMMARY: The Department of Commerce (the Department) is conducting a 
semiannual new shipper review of the antidumping duty order on canned 
pineapple fruit (CPF) from Thailand in response to a request from C & A 
Products Co., Ltd. (C&A). The period of review (POR) is July 1, 2006 
through December 31, 2006. The domestic interested party for this 
proceeding is Maui Pineapple Company Ltd. (petitioner).
    We preliminarily determine that C&A's sales are bona fide 
transactions. In addition, we preliminarily determine that C&A made its 
U.S. sales during the POR at prices above normal value. If these 
preliminary results are adopted in the final results of this review, we 
will instruct U.S. Customs and Border Protection (CBP) to liquidate 
entries subject to this review without regard to antidumping duties. If 
these preliminary results are not adopted in the final results and the 
assessment rate calculated in the final results of this review is above 
de minimis (i.e., at or above 0.50 percent), we will instruct CBP to 
assess antidumping duties on all appropriate entries covered by this 
review.
    Interested parties are invited to comment on these preliminary 
results. The final results will be issued 90 days after the date of 
issuance of these preliminary results, unless extended.

EFFECTIVE DATE: December 27, 2007.

FOR FURTHER INFORMATION CONTACT: Myrna Lobo, AD/CVD Operations, Office 
6, Import Administration, International Trade Administration, U.S. 
Department of Commerce, 14th Street and Constitution Avenue, NW, 
Washington, DC 20230; telephone: (202) 482-2371.

SUPPLEMENTARY INFORMATION:

Background

    The Department published the antidumping duty order on CPF from 
Thailand on July 18, 1995. See Notice of Antidumping Duty Order and 
Amended Final Determination: Canned Pineapple Fruit from Thailand, 60 
FR 36775 (July 18, 1995) (Antidumping Duty Order). On December 15, 
2006, the Department received a timely request from C&A, in accordance 
with 19 CFR 351.214(c), to conduct a semiannual new shipper review of 
the anitdumping duty order on CPF from Thailand. This request was 
rejected by the Department and C&A resubmitted its request for review 
on January 22, 2007. This resubmission was still timely in accordance 
with 19 CFR 351.214(d). On February 22, 2007, the Department found that 
the request for review with respect to C&A met all of the requirements 
set forth in 19 CFR 351.214(b) and initiated a semiannual new shipper 
review of the antidumping duty order on CPF from Thailand for the 
period, July 1 through December 31, 2006. See Canned Pineapple Fruit 
from Thailand: Initiation of New Shipper Antidumping Duty Review, 72 FR 
9305 (March 1, 2007).

[[Page 73319]]

    On March 9, 2007, the Department issued the initial questionnaire 
to C&A.\1\ On March 30, 2007, the Department received C&A's section A 
response, and on April 23, 2007, the Department received C&A's sections 
B and C questionnaire response. However, the Department initially 
rejected C&A's sections A, B and C questionnaire responses. See Letter 
from Maureen A. Flannery, Program Manager, AD/CVD Operations, Office 6, 
to Mr. Worawat Chinpinkyo, C & A Products Co., Ltd. dated May 9, 2007 
on file in room B-099, the Central Records Unit of the main Commerce 
building (CRU). On May 23, 2007 we received C&A's revised sections A, B 
and C responses. On July 5, 2007, the Department issued a supplemental 
questionnaire to C&A and C&A responded on July 20, 2007. A second and 
third supplemental questionnaire were issued to C&A on November 7 and 
November 21, 2007, and C&A responded on November 16 and November 27, 
2007, respectively. On December 10, 2007, C&A submitted revised 
databases on their U.S. and Russian sales due to missing information in 
the databases submitted in their previous response. On June 5, 2007, 
the petitioner submitted deficiency comments on C&A's section A 
questionnaire response.
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    \1\ 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 cases). Section C requests a complete listing of 
U.S. sales. Section D requests information on the cost of production 
of the foreign like product and the constructed value of the 
merchandise under investigation. Section E requests information on 
further manufacturing.
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    On April 18, 2007, petitioner filed an allegation that C&A's 
comparison market sales were being made at prices below the cost of 
production. Since petitioner's allegation was based on C&A's section A 
response dated March 30, 2007 which was removed from the record, the 
Department rejected petitioner's allegation. On June 5, 2007 petitioner 
resubmitted its sales below cost allegation. On August 9, 2007, the 
Department determined not to initiate a cost of production 
investigation because petitioner did not provide a reasonable basis to 
believe or suspect that C&A was selling CPF at prices below the cost of 
production in the comparison market. See Memorandum to Barbara E. 
Tillman, Director, AD/CVD Operations, Office 6 from the Team on 
Petitioner's Allegation of Sales Below the Cost of Production by C&A 
Products Co., Ltd. dated August 9, 2007 (Cost Allegation Memo) on file 
in the CRU.
    On August 15, 2007, the Department published a notice extending the 
deadline for the preliminary results to December 19, 2007. See Canned 
Pineapple Fruit from Thailand: Extension of Time Limit for Preliminary 
Results of Antidumping Duty New Shipper Review, 72 FR 45733 (August 15, 
2007).

Verification

    The Department intends to conduct a sales verification of C&A's 
responses following the preliminary results of this review.

Period of Review

    This review covers the period July 1, 2006 through December 31, 
2006.

Scope of the Order

    The product covered by this order 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. 
There have been no scope rulings for the subject order.

Bona Fides Analysis of U.S. Sales

    For the reasons stated below, we preliminarily find C&A's reported 
U.S. sales during the POR to be bona fide transactions based on the 
totality of the facts on the record. In evaluating whether or not sales 
in a new shipper review are commercially reasonable, and therefore bona 
fide, the Department considers, inter alia, such factors as: (1) the 
timing of the sale; (2) the price and quantity; (3) the expenses 
arising from the transaction; (4) whether the goods were resold at a 
profit; and (5) whether the transaction was made on an arm's-length 
basis. See Tianjin Tiancheng Pharmaceutical Co., Ltd. v. United States, 
366 F. Supp. 2d 1246, 1250 (Ct. Int'l Trade 2005), citing American 
Silicon Techs. v. United States, 110 F. Supp. 2d 992, 995 (Ct. Int'l 
Trade 2000). Accordingly, the Department considers a number of factors 
in its bona fides analysis, ``all of which may speak to the commercial 
realities surrounding an alleged sale of subject merchandise.'' See 
Hebei New Donghua Amino Acid Co., Ltd. v. United States, 374 F. Supp. 
2d 1333, 1342 (Ct. Int'l Trade 2005), citing Fresh Garlic from the PRC: 
Final Results of Administrative Review and Rescission of New Shipper 
Review, 67 FR 11283 (March 13, 2002), and accompanying Issues and 
Decision Memorandum: New Shipper Review of Clipper Manufacturing Ltd.
    Specifically, we find that: (1) the per-unit prices of C&A's sales 
were within the range of the unit values for other entries of subject 
merchandise during the POR; (2) the quantity of C&A's shipments were 
within the range of other shipments of subject merchandise entered 
during the POR; (3) the expenses arising from the transactions were not 
unusual; and (4) C&A's sales were made between unaffiliated parties at 
arm's length. See Memorandum to Barbara E. Tillman, Office Director, 
through Dana Mermelstein, Program Manager, from Myrna Lobo, 
International Trade Compliance Analyst regarding Antidumping Duty New 
Shipper Review of Canned Pineapple Fruit from Thailand: Bona Fides 
Analysis of Sales Reported by C & A Products Co., Ltd., dated 
concurrently with this notice and on file in the CRU (Bona Fides Memo).
    Therefore, pursuant to 19 CFR 351.214(b)(2), we are preliminarily 
treating C&A's sales of canned pineapple fruit to the United States as 
appropriate transactions for review.

Fair Value Comparisons

    To determine whether C&A's sales of CPF from Thailand were made in 
the United States at less than normal value (NV), we compared the 
export price (EP) to the NV, as described in the U.S. Price and Normal 
Value section of this notice in accordance with section 777A(d)(2) of 
the Tariff Act of 1930, as amended (``the Act'').

Product Comparisons

    In accordance with section 771(16)(A) of the Act, we considered all 
products sold in the comparison market as described in the Scope of the 
Order section of this notice, above, that were in the ordinary course 
of trade for purposes of determining appropriate product comparisons to 
the U.S. sales. In accordance with sections 771(16)(B) and (C) of the 
Act, where there were no sales of identical merchandise in the 
comparison market made in the ordinary course of trade, we compared 
U.S. sales to sales of the most similar foreign like product based on 
the

[[Page 73320]]

characteristics listed in sections B and C of our antidumping 
questionnaire: weight, form, variety and grade. We found that there 
were no comparison sales of foreign like product that were identical in 
these respects to the merchandise sold in the United States, and 
therefore compared U.S. products with the most similar merchandise sold 
in the comparison market based on the characteristics listed above, in 
that order of priority.

Date of Sale

    Regarding date of sale, the Department's regulations at 19 CFR 
351.401(i) state that the Department will normally use the date of 
invoice as the date of sale, unless a different date better reflects 
the date on which the material terms of sale are established. C&A 
reported invoice date as the date of sale for all sales in both the 
U.S. and comparison markets. We have analyzed the data on the record 
and preliminarily determine that invoice date is the appropriate date 
of sale for all U.S. and comparison market sales under review.

U.S. Price

    We used EP methodology for C&A's U.S. sales, in accordance with 
section 772(a) of the Act, because the subject merchandise was sold 
directly to the first unaffiliated purchaser in the United States prior 
to importation, and constructed export price methodology was not 
otherwise warranted based on the facts of record. In accordance with 
sections 772(a) and (c) of the Act, we calculated EP using prices C&A 
charged for packed subject merchandise shipped on an FOB basis. We made 
deductions for movement expenses, including charges for terminal 
handling, bill of lading preparation, shipping fee and where applicable 
cargo declaration document charges. Further, we treated C&A's reported 
commissions to its customer as discounts because the record shows that 
the amounts reported by C&A as commissions were in actuality reductions 
in price to C&A's unaffiliated customer, and that no principal-agent 
relationship exists between C&A and its U.S. customer. These discounts 
were deducted from U.S. price. See Analysis Memorandum for C & A 
Products Co., Ltd. (C&A Preliminary Analysis Memo) dated concurrently 
with this notice.

Normal Value

    In accordance with section 773(a)(1)(B)(i) of the Act, we have 
based NV on the price at which the foreign like product was first sold 
for consumption in the comparison market, in the usual commercial 
quantities, in the ordinary course of trade, and, to the extent 
practicable, at the same level of trade (LOT) as the EP sale. See 
``Level of Trade'' section below. After testing comparison market 
viability, we calculated NV for C&A as discussed below.

Home Market Viability and Selection of Comparison Market

    In order to determine whether there is a sufficient volume of sales 
in the home market to serve as a viable basis for calculating NV 
(i.e.,the aggregate volume of home market sales of the foreign like 
product is five percent or more of the aggregate volume of U.S. sales), 
we compared the volume of C&A's home market sales of the foreign like 
product to the volume of its U.S. sales of subject merchandise, in 
accordance with section 773(a)(1)(C) of the Act. Based on this 
comparison, we determined that C&A's home market was not viable during 
the POR. Consequently, the Department considered C&A's sales to third 
countries, and selected Russia as the appropriate comparison market 
because Russia was the largest third country market and no other third 
country market offered greater product similarity. We therefore based 
NV on C&A's sales to Russia.

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 EP. The NV LOT is that of the starting-price sales in 
the comparison market or, when NV is based on constructed value, that 
of the sales from which we derive selling expenses, G&A expenses, and 
profit. For EP, the U.S. LOT is also the level of the starting-price 
sale, which is usually from the exporter to the unaffiliated U.S. 
customer.
    To determine whether NV sales are at a different LOT than EP sales, 
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 
an LOT adjustment under section 773(a)(7)(A) of the Act.
    C&A reported that it made export sales to four customer categories 
during the period of review (i.e., to resellers, wholesalers, retailers 
and traders). C&A further reported that it performs identical selling 
functions for all customers in the U.S. and comparison markets, except 
for sales through the trader for which it did not perform certain 
marketing functions. Further, C&A reported that its selling activities 
do not vary by customer category and it performs the same functions for 
all customers.
    After analyzing the data on the record with respect to these 
selling functions, we find that there were not sufficient differences 
in the selling functions performed for different customer categories to 
determine that sales are made at more than one level of trade. We 
therefore find a single level of trade exists for all of C&A's sales to 
the U.S. and a single level of trade exists for all sales to the 
Russian market, and that the LOT in each market is the same.

Calculation of Normal Value

    We based NV on the starting prices of C&A's sales to the comparison 
market adjusting for billing adjustments where applicable pursuant to 
section 773(a)(1)(A) of the Act. Pursuant to section 773(a)(6)(B)(ii) 
of the Act, we made deductions for movement expenses (i.e., inland 
freight and warehousing, terminal handling expenses, bill of lading and 
shipping fees) when appropriate.
    C&A reported commissions on its comparison market sales. Based on 
our analysis of the documentation on the record, we preliminarily find 
that C&A's reported commissions are more appropriately considered to be 
discounts or brokerage fees, and we made deductions for them. In 
accordance with section 771(33) of the Act, we examined C&A's 
relationships with the parties it reported as selling agents and to 
whom C&A claimed it paid commissions. Based on the criteria the 
Department normally examines in determining a principal/agent 
relationship, we find that with respect to Russia, the parties 
identified by C&A as agents are intermediaries operating on their own 
behalf or on behalf of the customer, and that a principal/agent 
relationship does not exist. See e.g. Stainless Steel Bar from Germany: 
Final Results of New Shipper Review, and accompanying Issues and 
Decision Memorandum at Comment 2, 72 FR 39059, (July 17, 2007). 
Further, upon review of evidence on the record, we found the amounts 
reported as commissions are more properly treated as discounts or 
brokerage charges rather than as commissions. As a result, we have 
reclassified these expenses for margin calculation purposes.

[[Page 73321]]

    Pursuant to section 773(a)(6)(C)(iii) of the Act and 19 CFR 
351.410(c), we deducted comparison market direct selling expenses 
(i.e., credit expenses) and added U.S. direct selling expenses (i.e., 
credit expenses). In accordance with sections 773(a)(6)(A) and (B) of 
the Act, we deducted comparison market packing costs and added U.S. 
packing costs. We made an adjustment to NV to account for differences 
in physical characteristics of the merchandise, in accordance with 
section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411(a). We based 
this adjustment on the difference in the variable costs of 
manufacturing for the foreign like product and subject merchandise. See 
19 CFR 351.411(b). See C&A Preliminary Analysis Memo.

Currency Conversion

    In accordance with sections 773A(a) of the Act, we made currency 
conversions based on the official exchange rates in effect on the dates 
of the U.S. sales as certified by the Federal Reserve Bank of New York. 
See also 19 CFR 351.415.

Preliminary Results of New Shipper Review

    As a result of our review, we preliminarily determine that the 
following percentage margin exists for C&A for the period July 1, 2006, 
through December 31, 2006:

------------------------------------------------------------------------
                Manufacturer/Exporter                       Margin
------------------------------------------------------------------------
C & A Products Co., Ltd.............................              0.00 %
------------------------------------------------------------------------

Cash Deposit Requirements

    The following cash deposit requirements will be effective for all 
shipments of the subject merchandise entered, or withdrawn from 
warehouse, for consumption on or after the publication date of the 
final results of the new shipper review, as provided by section 
751(a)(2)(C) of the Act: 1) the cash deposit rate for C&A (i.e., for 
subject merchandise both manufactured and exported by C&A) will be that 
established in the final results of this review, except if the rate is 
less than 0.50 percent, and therefore, de minimis within the meaning of 
19 CFR 351.106(c)(1), in which case the cash deposit rate will be zero; 
2) for previously reviewed or investigated companies not participating 
in this review, 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 these reviews or the original less-than-fair-
value (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) the cash deposit rate for all 
other manufacturers or exporters will continue to be the all-others 
rate established in the LTFV investigation. These requirements, when 
imposed, shall remain in effect until further notice.

Assessment Rate

    Upon completion of the new shipper review, the Department shall 
determine, and CBP shall assess, antidumping duties on all appropriate 
entries, in accordance with 19 CFR 351.212. The Department intends to 
issue assessment instructions for C&A directly to CBP 15 days after the 
date of publication of the final results of this new shipper review.
    Pursuant to 19 CFR 351.212(b)(1), we will calculate an importer-
specific assessment rate on the basis of the ratio of the total amount 
of antidumping duties calculated for the examined sales and the total 
entered value of the examined sales. We will instruct CBP to assess 
antidumping duties on all appropriate entries covered by this review if 
the importer-specific assessment rate calculated in the final results 
of this review is above de minimis (i.e., at or above 0.50 percent). 
Pursuant to 19 CFR 351.106(c)(2), we will instruct CBP to liquidate 
without regard to antidumping duties any entries for which the 
assessment rate is zero or de minimis (i.e., less than 0.50 percent). 
See 19 CFR 351.106(c)(1).
    The final results of this review shall be the basis for the 
assessment of antidumping duties on entries of merchandise covered by 
the final results of this review.

Disclosure and Public Hearing

    The Department will disclose to parties the calculations performed 
in connection with these preliminary results within five days of the 
date of publication of this notice. See 19 CFR 351.224(b). Pursuant to 
19 CFR 351.309, interested parties may submit cases briefs not later 
than 30 days after the date of publication of this notice. Rebuttal 
briefs, limited to issues raised in the case briefs, may be filed not 
later than 5 days after the deadline for filing the case briefs. 
Parties who submit case briefs or rebuttal briefs in this proceeding 
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.
    Interested parties who wish to request a hearing or to participate 
if one is requested must submit a written request to the Assistant 
Secretary for Import Administration, Room B-099, within 30 days of the 
date of publication of this notice. Requests should contain: 1) the 
party's name, address and telephone number; 2) the number of 
participants; and 3) a list of issues to be discussed. See 19 CFR 
351.310(c). Issues raised in the hearing will be limited to those 
raised in the case and rebuttal briefs.
    The Department will issue the final results of this review, 
including the results of its analysis of issues raised in any written 
briefs, within 90 days of publication of these preliminary results, 
unless the final results are extended. See section 751(a)(3)(A) of the 
Act and 19 CFR 351.213(h).

Notification to Importers

    This notice serves as a preliminary reminder to importers of their 
responsibility under 19 CFR 351.402(f)(2) 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 new shipper review is issued and published in accordance with 
sections 751(a)(2)(B)(iv) and 777(i)(1) of the Act, as well as 19 CFR 
351.214(i).

    Dated: December 19, 2007.
David M. Spooner,
Assistant Secretary for Import Administration.
[FR Doc. E7-25057 Filed 12-26-07; 8:45 am]
BILLING CODE 3510-DR-S