Notice of Court Decision: Canned Pineapple Fruit From Thailand

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

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