Notice of Court Decision: Canned Pineapple Fruit From Thailand

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 (202) 482-1442 or

Kris Campbell at (202) 482-3813, 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

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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