03-17744. 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.

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: [phone] and [phone], 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). Id. The CIT affirmed the Department's remand determination. CIT Decision II.

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.

Footnotes

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.