97-13669. Notice of Court Decision: Canned Pineapple Fruit From Thailand

[Federal Register Volume 62, Number 100 (Friday, May 23, 1997)]
[Notices]
[Pages 28446-28447]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13669]


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DEPARTMENT OF COMMERCE

International Trade Administration
[A-549-813]


Notice of Court Decision: Canned Pineapple Fruit From Thailand

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

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SUMMARY: On March 18, 1997, the United States Court of International 
Trade (CIT) affirmed the Department of Commerce's results of 
redetermination pursuant to remand of the final determination of sales 
at less than fair value in the investigation of canned pineapple fruit 
from Thailand. Thai Public Pineapple Co. v. United States, Slip Op. 97-
32.

EFFECTIVE DATE: May 23, 1997.

FOR FURTHER INFORMATION CONTACT: Gabriel Adler at [phone] or 
Kris Campbell at [phone], Office of Antidumping/Countervailing 
Duty Enforcement, Import Administration, International Trade 
Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, N.W., Washington, D.C. 20230.

SUPPLEMENTARY INFORMATION: On June 5, 1995, the Department of Commerce 
(the Department) published its final affirmative antidumping 
determination (final determination) in the less-than-fair-value (LTFV) 
investigation of canned pineapple fruit from Thailand. 60 FR 36775. On 
July 18, 1995, the Department published an amended final determination 
and antidumping duty order on canned pineapple fruit from Thailand. 60 
FR 36775. In the final determination, for three Thai respondents, the 
Department used the pineapple fruit cost allocations from each 
company's normal accounting system because each company's allocation 
methodology was consistent with Thai generally accepted accounting 
principles (``GAAP'') and reasonably reflected the actual production 
costs incurred during the period of investigation. For the fourth 
respondent, Dole, the Department relied upon an average of the fruit 
cost allocation percentages normally used by the other three because, 
although Dole's allocation methodology was consistent with Thai GAAP, 
it did not reasonably reflect the costs associated with production of 
canned pineapple fruit (``CPF''). The Department did not use the 
alternative fruit cost methodologies submitted by respondents, which 
were based on the relative weight of fresh pineapple fruit in CPF and 
other products.
    The respondents sued, arguing, inter alia, that the Court of 
Appeals for the Federal Circuit's (CAFC) decision in IPSCO, Inc. v. 
United States, 965 F.2d 1056 (Fed. Cir. 1992) (``IPSCO''), mandates the 
use of a weight-based cost allocation methodology.
    On November 8, 1996, the U.S. Court of International Trade (CIT) 
remanded the case to the Department with instructions either to accept 
the weight-based methodologies for allocation of costs submitted by the 
respondents, or to rely on another ``non-output price-based cost 
allocation methodology.'' Slip Op. 96-182. The CIT held that the 
Department's reliance on the allocations of costs in the respondents' 
normal accounting systems was ``arbitrary, capricious, not based on 
substantial evidence and contrary to law'' because, according to the 
CIT, these allocations were ``unreliable and distortive of actual 
costs.'' Id. at 19. The CIT then held that the CAFC in IPSCO had held 
that only a weight-based allocation of costs is permitted under the 
antidumping statute. Id. at 28-29.
    On February 4, 1997, the Department filed its remand with the CIT. 
In the remand, the Department stated that although it respectfully 
disagreed with the CIT's decision, it had nonetheless complied with the 
CIT's instructions and had revised its determination to reflect the 
weight-based fruit cost allocation methodologies submitted by the 
respondents. On March 18, 1997, the CIT affirmed the Department's 
remand determination. Slip. Op. 97-32.
    We note that in its decision in Timken Co. v. United States, 893 
F.2d 337 (Fed. Cir. 1990), the CAFC held that, pursuant to 19 U.S.C. 
Sec. 1516a(e), the Department must publish notice of a court decision 
which is not ``in harmony'' with a Department determination, and must 
suspend liquidation of entries pending a ``conclusive'' court decision. 
The CIT opinions in Thai Public Pineapple Co. v. United States on 
November 8, 1996, and March 18, 1997, constitute a decision not in 
harmony with the Department's final determination. Publication of this 
notice fulfills the ``Timken'' requirement.
    Absent an appeal, or, if appealed, upon a ``conclusive'' court 
decision affirming the CIT's opinion, the

[[Page 28447]]

Department will amend the amended final LTFV determination to reflect 
the margins in the Department's redetermination on remand filed with 
the CIT on February 4, 1997. Liquidation of entries continues to be 
suspended pending the expiration of the period of appeal, or, if the 
CIT's decision is appealed, pending a ``conclusive'' court decision, 
or, where applicable, pending the final results of the first 
administrative review.

    Dated: May 14, 1997.
Robert S. LaRussa,
Acting Assistant Secretary for Import Administration.
[FR Doc. 97-13669 Filed 5-22-97; 8:45 am]
BILLING CODE 3510-DS-P