Canned Pineapple Fruit from Thailand: Preliminary Results of Antidumping Duty Administrative Review, 44256-44260 [E6-12654]

Download as PDF 44256 Federal Register / Vol. 71, No. 150 / Friday, August 4, 2006 / Notices DEPARTMENT OF COMMERCE International Trade Administration [A–549–813] Canned Pineapple Fruit from Thailand: Preliminary Results of Antidumping Duty Administrative Review Import Administration, International Trade Administration, Department of Commerce. SUMMARY: In response to requests by certain producers/exporters of the subject merchandise and the petitioners,1 the Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on canned pineapple fruit (CPF) from Thailand. This review covers two producers/ exporters of the subject merchandise. The period of review (POR) is July 1, 2004, through June 30, 2005. The Department has preliminarily determined that the companies subject to this review made U.S. sales at prices less than normal value (NV). If these preliminary results are adopted in our final results of administrative review, we will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries. Interested parties are invited to comment on these preliminary results of review. We will issue the final results of review no later than 120 days from the date of publication of this notice. EFFECTIVE DATE: August 4, 2006. FOR FURTHER INFORMATION CONTACT: Magd Zalok or Howard Smith, AD/CVD Operations, Office 4, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230, telephone: (202) 482–4162 and (202) 482–5193, respectively. SUPPLEMENTARY INFORMATION: gechino on PROD1PC61 with NOTICES AGENCY: Background On July 1, 2005, the Department published in the Federal Register a notice of ‘‘Opportunity to Request Administrative Review’’ of the antidumping duty order on CPF from Thailand. See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity To Request Administrative Review, 70 FR 38099 (July 1, 2005). In accordance with 19 CFR § 351.213(b)(2), on July 19, 2005, the producer/exporter, Vita Food Factory (1989) Ltd. (Vita), requested that the Department conduct an 1 The petitioners are Maui Pineapple Company Ltd. and the International Longshoreman’s and Warehouseman’s Union. VerDate Aug<31>2005 22:39 Aug 03, 2006 Jkt 208001 administrative review of its sales and entries of subject merchandise into the United Stated during the POR. Additionally, in accordance with 19 CFR § 351.213(b)(1), on July 29, 2005, the petitioners requested that the Department conduct a review of Tropical Food Industries Co., Ltd. (TROFCO), The Prachuab Fruit Canning Company (PRAFT), and Vita. On August 29, 2005, the Department initiated an administrative review of TROFCO, PRAFT, and Vita. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Requests for Revocation in Part, 70 FR 51009 (August 29, 2005). On August 5, 2005, the Department issued its antidumping questionnaire to TROFCO, PRAFT, and Vita. On August 10, 2005, PRAFT informed the Department that it had no U.S. sales or shipments of the subject merchandise during the POR. In August and September 2005, Vita responded to the Department’s antidumping questionnaire. Subsequently, the Department issued supplemental questionnaires to Vita. Throughout this administrative review, the petitioners have submitted comments regarding Vita’s questionnaire responses. In a letter submitted to the Department on August 24, TROFCO requested an extension of time to respond to the Department’s questionnaire. Based on TROFCO’s request, the Department granted TROFCO an extension of time to respond to section A of the questionnaire until September 12, 2005, and to sections B, C, and D of the questionnaire until September 27, 2005. However, TROFCO did not respond to the Department’s questionnaire. On October 6, 2005, the Department issued a letter to TROFCO requesting that it explain in writing whether it had no shipment or sales of CPF to the United States during the POR. In the letter, we informed TROFCO that if it did not respond to the Department’s letter by October 13, 2005, the Department may conclude that TROFCO decided not to cooperate and may use facts available that are adverse to TROFCO’s interests in determining the company’s dumping margin. The Department did not receive a response from TROFCO. Pursuant to section 751(a)(3)(A) of the Tariff Act of 1930, as amended (the Act), the Department may extend the deadline for completion of an administrative review if it determines that it is not practicable to complete the review within the statutory time limit of 245 days. On March 16, 2006, the Department extended the time limit for the preliminary results of review until July 31, 2006 (see Canned Pineapple PO 00000 Frm 00003 Fmt 4703 Sfmt 4703 Fruit From Thailand: Notice of Extension of Time Limit for Preliminary Results of Antidumping Duty Administrative Review, 71 FR 14497 (March 22, 2006)). The Department is conducting this administrative review in accordance with section 751 of the Act. Period of Review The POR is July 1, 2004, through June 30, 2005. Scope of the Order The product covered by the order is canned pineapple fruit, 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. Imports of canned pineapple fruit are 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 canned pineapple fruit packed in a sugar–based syrup; HTSUS 2008.20.0090 covers CPF packed without added sugar (i.e., juice– packed). The HTSUS subheadings are provided for convenience and customs purposes. The written description of the merchandise covered by this order is dispositive. Partial Preliminary Rescission of Review As noted above, PRAFT informed the Department that it had no shipments of subject merchandise to the United States during the POR. After receiving PRAFT’s ‘‘no shipments’’ claim, the Department examined CBP entry data for the POR. These data support the conclusion that there were no entries, exports, or sales of subject merchandise from PRAFT during the POR. See memorandum to the file from Magd Zalok dated May 15, 2006. Further, on May 22, 2006, the Department requested that CBP notify it within 10 days if CBP had evidence of exports of subject merchandise from PRAFT during the POR. CBP has not notified the Department of such exports. See the memorandum to the file from Magd Zalok dated June 15, 2006. Therefore, in accordance with 19 CFR § 351.213(d)(3), and consistent with the Department’s practice, we are preliminarily rescinding our review of PRAFT. See, e.g., Certain Steel Concrete Reinforcing Bars From Turkey; Final Results, Rescission of Antidumping Duty Administrative Review in Part, and Determination Not To Revoke in Part, 68 FR 53127, 53128 (September 9, 2003). E:\FR\FM\04AUN1.SGM 04AUN1 Federal Register / Vol. 71, No. 150 / Friday, August 4, 2006 / Notices Use of Adverse Facts Available (AFA) Section 776(a)(2) of the Act provides that, if an interested party (A) Withholds information requested by the Department, (B) fails to provide such information by the deadline, or in the form or manner requested, (C) significantly impedes a proceeding, or (D) provides information that cannot be verified, the Department shall use, subject to sections 782(d) and (e) of the Act, facts otherwise available in reaching the applicable determination. Section 782(d) of the Act provides that, if the Department determines that a response to a request for information does not comply with the request, the Department will inform the person submitting the response of the nature of the deficiency and shall, to the extent practicable, provide that person the opportunity to remedy or explain the deficiency. If that person submits further information that continues to be unsatisfactory, or this information is not submitted within the applicable time limits, the Department may, subject to section 782(e) of the Act, disregard all or part of the original and subsequent responses, as appropriate. The evidence on the record of this review establishes that, pursuant to section 776(a)(2)(A) and (C) of the Act, the use of total facts available is warranted in determining the dumping margin for TROFCO because this company failed to provide requested information. Specifically, TROFCO failed to respond to the Department’s antidumping questionnaire. On October 6, 2005, the Department informed TROFCO by letter that failure to respond to the request for information by October 13, 2005, may result in the use of AFA in determining its dumping margin. TROFCO, however, did not respond to the Department’s October 6, 2005, letter. Because TROFCO failed to provide any of the necessary information requested by the Department and thus significantly impeded this segment of the proceeding, pursuant to sections 776(a)(2)(A) and (C) of the Act, we have based the dumping margin for TROFCO on the facts otherwise available (FA). gechino on PROD1PC61 with NOTICES Use of Adverse Inferences Section 776(b) of the Act states that if the Department ‘‘finds that an interested party has failed to cooperate by not acting to the best of its ability to comply with a request for information from the administering authority or the Commission, the administering authority or the Commission ..., in reaching the applicable determination under this title, may use an inference VerDate Aug<31>2005 22:39 Aug 03, 2006 Jkt 208001 that is adverse to the interests of that party in selecting from among the facts otherwise available.’’ See also Statement of Administrative Action (SAA) accompanying the Uruguay Round Agreements Act (URAA), H. Rep. No. 103–316 at 870 (1994). Section 776(b) of the Act goes on to note that an adverse inference may include reliance on information derived from (1) the petition; (2) a final determination in the investigation under this title; (3) any previous review under section 751 or determination under section 753; or (4) any other information on the record. Adverse inferences are appropriate ‘‘to ensure that the party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully.’’ See SAA at 870. The Court of Appeals for the Federal Circuit (CAFC), in Nippon Steel Corporation v. United States, 337 F.3d 1373, 1380 (Fed. Cir. 2003), held that the Department need not show intentional conduct existed on the part of the respondent, but merely that a ‘‘failure to cooperate to the best of a respondent’s ability’’ existed, i.e., information was not provided ‘‘under circumstances in which it is reasonable to conclude that less than full cooperation has been shown.’’ Id. The record shows that TROFCO failed to cooperate to the best of its ability within the meaning of section 776(b) of the Act. As noted above, TROFCO failed to provide any response to the Department’s requests for information. As a general matter, it is reasonable for the Department to assume that TROFCO possessed the records necessary to participate in this review. Thus, by not supplying the information the Department requested, TROFCO failed to cooperate to the best of its ability. As TROFCO failed to cooperate to the best of its ability, we are applying an adverse inference in determining its dumping margin pursuant to section 776(b) of the Act. As AFA, we have preliminarily assigned to TROFCO a dumping margin of 51.16 percent, the highest margin determined for any respondent during any segment of this proceeding, consistent with section 776(b)(2) of the Act. This rate was calculated for a respondent in the less than fair value investigation. See Notice of Antidumping Duty Order and Amended Final Determination: Canned Pineapple Fruit From Thailand, 60 FR 36775 (July 18, 1995). Corroboration of Information Section 776(c) of the Act requires the Department, to the extent practicable, to corroborate secondary information used as FA based on independent sources that are reasonably at its disposal. PO 00000 Frm 00004 Fmt 4703 Sfmt 4703 44257 Secondary information is defined as ‘‘{i}nformation derived from the petition that gave rise to the investigation or review, the final determination concerning the subject merchandise, or any previous review under section 751 concerning the subject merchandise.’’ See SAA at 870 and 19 CFR § 351.308(c). The SAA clarifies that ‘‘corroborate’’ means that the Department will satisfy itself that the secondary information to be used has probative value (see SAA at 870). The SAA also states that independent sources used to corroborate such information may include, for example, published price lists, official import statistics and customs data, and information obtained from interested parties during the particular investigation or review. Id. To corroborate secondary information, the Department will, to the extent practicable, examine the reliability and relevance of the information to be used. However, unlike other types of information, such as input costs or selling expenses, there are no independent sources to establish the reliability of calculated dumping margins. Thus, in an administrative review, if the Department chooses as total AFA a calculated dumping margin from a prior segment of the proceeding, it is not necessary to question the reliability of the margin for that time period. With respect to the relevancy aspect of corroboration, however, the Department will consider information reasonably at its disposal as to whether there are circumstances that would render a dumping margin inappropriate. Where circumstances indicate that the selected dumping margin is not appropriate as AFA, the Department will disregard the margin and determine an appropriate dumping margin. See, e.g., Fresh Cut Flowers from Mexico; Final Results of Antidumping Duty Administrative Review, 61 FR 6812, 6814 (February 22, 1996) (where the Department disregarded the highest dumping margin as AFA because the margin was based on another company’s uncharacteristic business expense resulting in an unusually high dumping margin). We have preliminarily determined that the 51.16 percent rate is appropriate because it was calculated for another respondent in a prior segment of this proceeding, and it has not been judicially invalidated. Thus, we consider the calculated rate of 51.16 to be corroborated. Comparison Methodology In order to determine whether Vita sold CPF to the United States at prices less than NV, the Department compared E:\FR\FM\04AUN1.SGM 04AUN1 44258 Federal Register / Vol. 71, No. 150 / Friday, August 4, 2006 / Notices gechino on PROD1PC61 with NOTICES the export price (EP) of individual U.S. sales to the monthly weighted–average NV of sales of the foreign like product made in the ordinary course of trade (see section 777A(d)(2) of the Act; see also section 773(a)(1)(B)(i) of the Act). Section 771(16) of the Act defines foreign like product as merchandise that is identical or similar to subject merchandise and produced by the same person and in the same country as the subject merchandise. Thus, we considered all products covered by the scope of the order, that were produced by the same person and in the same country as the subject merchandise, and sold by Vita in the comparison market during the POR, to be foreign like products for the purpose of determining appropriate product comparisons to CPF sold in the United States. The Department compared U.S. sales to sales made in the comparison market within the contemporaneous window period, which extends from three months prior to the month in which the U.S. sale was made until two months after the month in which the U.S. sale was made. Where there were no sales of identical merchandise made in the comparison market in the ordinary course of trade, the Department compared U.S. sales to sales of the most similar foreign like product made in the ordinary course of trade. In making product comparisons, the Department selected identical and most similar foreign like products based on the physical characteristics reported by Vita in the following order of importance: weight, form, variety, and grade. Where there were no appropriate sales of foreign like product to compare to a U.S. sale, we compared the price of the U.S. sale to constructed value (CV), in accordance with section 773(a)(4) of the Act. Export Price The Department based the price of each of Vita’s U.S. sales of subject merchandise on EP, as defined in section 772(a) of the Act, because the merchandise was sold, prior to importation, to unaffiliated purchasers in the United States, or to unaffiliated purchasers for exportation to the United States and the use of constructed export price was not otherwise warranted based on the facts on the record. In accordance with section 772 (a) and (c) of the Act, we calculated EP using the prices Vita charged for packed subject merchandise, from which we made deductions for movement expenses, including, where applicable, charges for transportation, terminal handling, container stuffing, bill of lading preparation, Customs clearance, and legal and port fees documentation. See VerDate Aug<31>2005 22:39 Aug 03, 2006 Jkt 208001 Analysis Memorandum for Vita Food Factory (1989) Co., Ltd., (Vita Analysis Memorandum) dated concurrently with this notice. We did not calculate EP using the post–sale, post–POR price adjustments reported by Vita because Vita failed to demonstrate that it is entitled to these adjustments (the post– sale adjustments benefitted Vita, and thus Vita bore the burden to demonstrate that it is entitled to these adjustments). See Corus Engineering Steels Ltd. v. United States, Slip Op. 2003–110, 2003 CIT Lexis 110 at * 11 (‘‘The burden of proof is upon the claimant to prove entitlement.’’). See also Vita’s Post Sale Price Adjustment Memorandum, dated concurrently with this notice. Normal Value After testing home market viability and whether comparison market sales were at below–cost prices, we calculated NV for Vita as noted in the ‘‘Price–to-Price Comparisons’’ and ‘‘Price–to-CV Comparisons’’ sections of this notice. A. Home Market Viability In accordance with section 773(a)(1)(C) of the Act, in order to determine whether there was 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 greater than or equal to five percent of the aggregate volume of U.S. sales), we compared the aggregate volume of Vita’s home market sales of the foreign like product to the aggregate volume of its U.S. sales of subject merchandise. Because the aggregate volume of Vita’s home market sales of foreign like product is less than five percent of the aggregate volume of its U.S. sales of subject merchandise, we based NV on sales of the foreign like product in a country other than Vita’s home market. See section 773(a)(1)(B)(ii) of the Act. Specifically, we based NV for Vita on sales of the foreign like product in the Netherlands, the third–country market with the greatest volume of foreign like product sales. B. Cost of Production (COP) Analysis In the most recently completed administrative review of the antidumping duty order on CPF from Thailand, the Department determined that Vita sold foreign like product at prices below the cost of producing the product and excluded such sales from the calculation of NV. As a result, in accordance with section 773(b)(2)(A)(ii) of the Act, the Department determined PO 00000 Frm 00005 Fmt 4703 Sfmt 4703 that there are reasonable grounds to believe or suspect that during the instant POR, Vita sold the foreign like product at prices below the cost of producing the product. Thus, the Department initiated a sales below cost inquiry with respect to Vita. 1. Calculation of COP In accordance with section 773(b)(3) of the Act, for each unique foreign like product sold by Vita during the POR, we calculated a weighted–average COP based on the sum of the respondent’s materials and fabrication costs, selling, general and administrative (SG&A) expenses, including interest expenses, and packing costs. Consistent with the position taken by the Department in prior segments of this proceeding, for reporting purposes, Vita allocated joint product costs between solid and juice products using the net realizable value of the products during the five-year period 1990 through 1994. We relied on the costs submitted by Vita without exception. 2. Test of Comparison Market Sales Prices In order to determine whether sales were made at prices below the COP, on a product–specific basis we compared the respondent’s weighted–average COPs to the prices of its comparison market sales of foreign like product, as required under section 773(b) of the Act. In accordance with sections 773(b)(1)(A) and (B) of the Act, in determining whether to disregard comparison market sales made at prices less than the COP, we examined whether such sales were made: (1) in substantial quantities within an extended period of time; and (2) at prices which permitted the recovery of all costs within a reasonable period of time. We compared the COP to comparison market sales prices, less any applicable movement charges. 3. Results of the COP Test Pursuant to section 773(b)(2)(C) of the Act, where less than 20 percent of a respondent’s sales of a given product were made at prices less than the COP, we did not disregard any below–cost sales of that product because the below– cost sales were not made in ‘‘substantial quantities.’’ Where 20 percent or more of a respondent’s sales of a given product were made at prices less than the COP during the POR, we determined such sales to have been made in ‘‘substantial quantities’’ and within an extended period of time (i.e., one year) pursuant to sections 773(b)(2)(B) and (C) of the Act. Based on our comparison of POR average costs to reported prices, we also determined, in accordance with E:\FR\FM\04AUN1.SGM 04AUN1 Federal Register / Vol. 71, No. 150 / Friday, August 4, 2006 / Notices production and sale of the foreign like product, in the ordinary course of trade, for consumption in the Netherlands. We based selling expenses on weighted– average actual comparison market direct and indirect selling expenses. Price–to-Price Comparisons Where it was appropriate to base NV on prices, we used the prices 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 possible, at the same level of trade (LOT) as the comparison U.S. sale. We based NV on the prices of Vita’s sales to unaffiliated customers in the Netherlands. We made adjustments, where appropriate, for physical differences in the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act. In accordance with sections 773(a)(6)(A), (B), and (C) of the Act, where appropriate, we deducted from the starting price movement expenses, including, where applicable, charges for transportation, terminal handling, container stuffing, bill of lading preparation, customs clearance, and legal and port fees documentation. We also made circumstance of sale adjustments to account for differences in packing, credit and other direct selling expenses incurred in the comparison and U.S. markets. In addition, where applicable, pursuant to 19 CFR § 351.410 (e), we made a reasonable allowance for other selling expenses where commissions were paid in only one of the markets under consideration. See Vita Analysis Memorandum. In accordance with the Department’s practice, where all contemporaneous matches to a U.S. sale resulted in difference–in-merchandise adjustments exceeding 20 percent of the cost of manufacturing the product sold in the United States, we based NV on CV. gechino on PROD1PC61 with NOTICES section 773(b)(2)(D) of the Act, that these sales were not made at prices which would permit recovery of all costs within a reasonable period of time. As a result, we disregarded these below–cost sales. Level of Trade In accordance with section 773(a)(1)(B) of the Act, to the extent practicable, we determined NV based on sales in the comparison market at the same LOT as the EP. The NV LOT is based on the starting price of the sales in the comparison market or, when NV is based on CV, the starting price of the sales from which we derive SG&A expenses and profit. For EP sales, the U.S. LOT is based on the starting price of the sales to the U.S. market. To determine whether NV sales are at a different LOT than the 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 a LOT adjustment under section 773(a)(7)(A) of the Act. In determining whether separate LOTs exist, we obtained information from Vita regarding the marketing stages for the reported U.S. and comparison market sales, including a description of the selling activities performed by Vita for each channel of distribution. Generally, if the reported LOTs are the same, the functions and activities of the seller at each level should be similar. Conversely, if a party reports that LOTs are different for different groups of sales, the selling functions and activities of the seller for each group should be dissimilar. Vita reported that it sold the merchandise under review to two types of customers, sales agents and end users, in the United States and the Netherlands through one channel of distribution in each market. See Vita’s September 22, 2005, and November 25, 2005, questionnaire responses at 18–24 and 11–13, respectively. In each channel of distribution, Vita engaged in the following selling activities for both types of customers: order processing, packing, freight and delivery, and paying sales commissions. Because the one sales channel in the United States involves the same functions for all sales, and the one sales channel in the Netherlands also involves the same functions for all sales, we have Price–to-CV Comparisons In accordance with section 773(a)(4) of the Act, we based NV on CV when we were unable to compare the U.S. sale to a comparison market sale of an identical or similar product. For each unique CPF product sold by Vita in the United States during the POR, we calculated a weighted–average CV based on the sum of the respondent’s materials and fabrication costs, SG&A expenses, including interest expenses, packing costs, and profit. In accordance with section 773(e)(2)(A) of the Act, we based SG&A expenses and profit on the amounts incurred and realized by the respondent in connection with the VerDate Aug<31>2005 22:39 Aug 03, 2006 Jkt 208001 PO 00000 Frm 00006 Fmt 4703 Sfmt 4703 44259 preliminarily determined that there is one LOT in the United States and one LOT in the Netherlands. Moreover, because Vita performed nearly identical selling functions for U.S. and Dutch sales (the only difference being that, at times, Vita arranged the international shipping for Dutch sales, whereas it did not provide this service for U.S. sales), we have preliminarily determined that, during the POR, Vita sold the foreign like product and subject merchandise at the same LOT. Therefore, we have determined that a LOT adjustment is not warranted. Currency Conversion Pursuant to section 773A(a) of the Act, we converted amounts expressed in foreign currencies into U.S. dollar amounts based on the exchange rates in effect on the dates of the U.S. sales, as certified by the Federal Reserve Bank. Preliminary Results of Review As a result of this review, we preliminarily determined that the following weighted–average dumping margins exist for the period July 1, 2004, through June 30, 2005: Manufacturer/Exporter Vita Food Factory (1989) Ltd. ................. Tropical Food Industries Co., Ltd. .................... Margin (percent) 16.14 51.16 Public Comment Within 10 days of publicly announcing the preliminary results of this review, we will disclose to interested parties, any calculations performed in connection with the preliminary results. See 19 CFR § 351.224(b). Any interested party may request a hearing within 30 days of the publication of this notice in the Federal Register. See 19 CFR § 351.310(c). If requested, a hearing will be held 44 days after the date of publication of this notice in the Federal Register, or the first workday thereafter. Interested parties are invited to comment on the preliminary results of this review. The Department will consider case briefs filed by interested parties within 30 days after the date of publication of this notice in the Federal Register. Also, interested parties may file rebuttal briefs, limited to issues raised in the case briefs. The Department will consider rebuttal briefs filed not later than five days after the time limit for filing case briefs. Parties who submit arguments 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. E:\FR\FM\04AUN1.SGM 04AUN1 44260 Federal Register / Vol. 71, No. 150 / Friday, August 4, 2006 / Notices gechino on PROD1PC61 with NOTICES Further, we request that parties submitting written comments provide the Department with a diskette containing an electronic copy of the public version of such comments. Unless the deadline for issuing the final results of review is extended, the Department will issue the final results of this administrative review, including the results of its analysis of issues raised in the written comments, within 120 days of publication of the preliminary results in the Federal Register. Assessment Rates In accordance with 19 CFR § 351.212(b)(1), in these preliminary results of review, we calculated importer/customer–specific assessment rates for Vita’s subject merchandise. Since Vita did not report the entered value for its sales, we calculated per– unit assessment rates for its merchandise by summing, on an importer or customer–specific basis, the dumping margins calculated for all U.S. sales to the importer or customer, and dividing this amount by the total quantity of those sales. If the importer/ customer–specific assessment rate is above de minimis (i.e., 0.50 percent ad valorem or greater), we will instruct CBP to assess the importer/customer– specific rate uniformly, as appropriate, on all entries of subject merchandise during the POR that were entered by the importer or sold to the customer. To determine whether the per–unit duty assessment rates were de minimis (i.e., less than 0.50 percent ad valorem), in accordance with the requirement set forth in 19 CFR § 351.106(c)(2), we calculated importer/customer–specific ad valorem ratios based on the estimated entered value. For TROFCO, the respondent receiving a dumping margin based upon AFA, we will instruct CBP to liquidate entries according to the AFA ad valorem rate. Within 15 days of publication of the final results of review, the Department will issue instructions to CBP directing it to assess the final importer/customer– specific assessment rates (if above de minimis) uniformly on all entries of subject merchandise made by the relevant importer during the POR. The Department clarified its ‘‘automatic assessment’’ regulation on May 6, 2003 (68 FR 23954). This clarification applies to POR entries of subject merchandise produced by companies examined in this review (i.e., companies for which a dumping margin was calculated) where the companies did not know that their merchandise was destined for the United States. In such instances, we will instruct CBP to liquidate unreviewed entries at the all–others rate if there is VerDate Aug<31>2005 22:39 Aug 03, 2006 Jkt 208001 no rate for the intermediate company(ies) involved in the transaction. For a full discussion of this clarification, see Antidumping and Countervailing Duty Proceedings: Assessment of Antidumping Duties, 68 FR 23954 (May 6, 2003). Dated: July 31, 2006. David M. Spooner, Assistant Secretary for Import Administration. [FR Doc. E6–12654 Filed 8–3–06; 8:45 am] Cash Deposit Requirements DEPARTMENT OF COMMERCE 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 this administrative review, as provided by section 751(a)(1) of the Act: (1) The cash deposit rate for the reviewed companies will be the rate established in the final results of this review (except that if the rate for a particular company is de minimis, i.e., less than 0.5 percent, no cash deposit will be required for that company); (2) for previously investigated or reviewed companies not listed above, 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 this review, a prior review, or the 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 subject merchandise; and (4) the cash deposit rate for all other manufacturers or exporters will continue to be the ‘‘all others’’ rate of 24.64 percent, which is the ‘‘all others’’ rate established in the LTFV investigation. These cash deposit rates, when imposed, shall remain in effect until publication of the final results of the next administrative review. National Oceanic and Atmospheric Administration Notification to Importers This notice also 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 and 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. We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act. PO 00000 Frm 00007 Fmt 4703 Sfmt 4703 BILLING CODE 3510–DS–S [I.D. 072806B] Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; South Atlantic Snapper Grouper Fishery Management Plan; Amendment 15 National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of intent to prepare a draft environmental impact statement; supplement; request for comments. AGENCY: SUMMARY: The South Atlantic Fishery Management Council (Council) is preparing a Draft Environmental Impact Statement (DEIS) to assess the environmental impacts of a range of management actions proposed in its draft Amendment 15 to the Snapper Grouper Fishery Management Plan of the South Atlantic (FMP). This notice is intended to supplement notices published in January 2002, September 2003, and July 2005, announcing the preparations of DEISs for FMP Amendments 13, 13B, and 13C, respectively. DATES: Comments on the scope of the DEIS will be accepted through September 5, 2006. ADDRESSES: Comments should be sent to Jack McGovern, National Marine Fisheries Service, Southeast Regional Office, 263 13th Avenue South, St. Petersburg, FL 33701; Phone: 727–824– 5311; Fax: 727–824–5308; email: John.McGovern@noaa.gov. FOR FURTHER INFORMATION CONTACT: Kim Iverson, Public Information Officer, toll free 1–866–SAFMC–10 or 843–571– 4366; kim.iverson@safmc.net. SUPPLEMENTARY INFORMATION: The snapper grouper fishery operating in the South Atlantic exclusive economic zone is managed under the FMP. Following Council preparation, this FMP was approved and implemented by NMFS in March 1983, under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The actions proposed in FMP Amendment 15 originated from the E:\FR\FM\04AUN1.SGM 04AUN1

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[Federal Register Volume 71, Number 150 (Friday, August 4, 2006)]
[Notices]
[Pages 44256-44260]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-12654]



[[Page 44256]]

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DEPARTMENT OF COMMERCE

International Trade Administration

[A-549-813]


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

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.
SUMMARY: In response to requests by certain producers/exporters of the 
subject merchandise and the petitioners,\1\ the Department of Commerce 
(the Department) is conducting an administrative review of the 
antidumping duty order on canned pineapple fruit (CPF) from Thailand. 
This review covers two producers/exporters of the subject merchandise. 
The period of review (POR) is July 1, 2004, through June 30, 2005.
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    \1\ The petitioners are Maui Pineapple Company Ltd. and the 
International Longshoreman's and Warehouseman's Union.
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    The Department has preliminarily determined that the companies 
subject to this review made U.S. sales at prices less than normal value 
(NV). If these preliminary results are adopted in our final results of 
administrative review, we will instruct U.S. Customs and Border 
Protection (CBP) to assess antidumping duties on all appropriate 
entries. Interested parties are invited to comment on these preliminary 
results of review. We will issue the final results of review no later 
than 120 days from the date of publication of this notice.

EFFECTIVE DATE:  August 4, 2006.

FOR FURTHER INFORMATION CONTACT: Magd Zalok or Howard Smith, AD/CVD 
Operations, Office 4, Import Administration, International Trade 
Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW, Washington, DC 20230, telephone: (202) 482-
4162 and (202) 482-5193, respectively.

SUPPLEMENTARY INFORMATION:

Background

    On July 1, 2005, the Department published in the Federal Register a 
notice of ``Opportunity to Request Administrative Review'' of the 
antidumping duty order on CPF from Thailand. See Antidumping or 
Countervailing Duty Order, Finding, or Suspended Investigation; 
Opportunity To Request Administrative Review, 70 FR 38099 (July 1, 
2005). In accordance with 19 CFR Sec.  351.213(b)(2), on July 19, 2005, 
the producer/exporter, Vita Food Factory (1989) Ltd. (Vita), requested 
that the Department conduct an administrative review of its sales and 
entries of subject merchandise into the United Stated during the POR. 
Additionally, in accordance with 19 CFR Sec.  351.213(b)(1), on July 
29, 2005, the petitioners requested that the Department conduct a 
review of Tropical Food Industries Co., Ltd. (TROFCO), The Prachuab 
Fruit Canning Company (PRAFT), and Vita. On August 29, 2005, the 
Department initiated an administrative review of TROFCO, PRAFT, and 
Vita. See Initiation of Antidumping and Countervailing Duty 
Administrative Reviews and Requests for Revocation in Part, 70 FR 51009 
(August 29, 2005).
    On August 5, 2005, the Department issued its antidumping 
questionnaire to TROFCO, PRAFT, and Vita. On August 10, 2005, PRAFT 
informed the Department that it had no U.S. sales or shipments of the 
subject merchandise during the POR. In August and September 2005, Vita 
responded to the Department's antidumping questionnaire. Subsequently, 
the Department issued supplemental questionnaires to Vita. Throughout 
this administrative review, the petitioners have submitted comments 
regarding Vita's questionnaire responses. In a letter submitted to the 
Department on August 24, TROFCO requested an extension of time to 
respond to the Department's questionnaire. Based on TROFCO's request, 
the Department granted TROFCO an extension of time to respond to 
section A of the questionnaire until September 12, 2005, and to 
sections B, C, and D of the questionnaire until September 27, 2005. 
However, TROFCO did not respond to the Department's questionnaire. On 
October 6, 2005, the Department issued a letter to TROFCO requesting 
that it explain in writing whether it had no shipment or sales of CPF 
to the United States during the POR. In the letter, we informed TROFCO 
that if it did not respond to the Department's letter by October 13, 
2005, the Department may conclude that TROFCO decided not to cooperate 
and may use facts available that are adverse to TROFCO's interests in 
determining the company's dumping margin. The Department did not 
receive a response from TROFCO.
    Pursuant to section 751(a)(3)(A) of the Tariff Act of 1930, as 
amended (the Act), the Department may extend the deadline for 
completion of an administrative review if it determines that it is not 
practicable to complete the review within the statutory time limit of 
245 days. On March 16, 2006, the Department extended the time limit for 
the preliminary results of review until July 31, 2006 (see Canned 
Pineapple Fruit From Thailand: Notice of Extension of Time Limit for 
Preliminary Results of Antidumping Duty Administrative Review, 71 FR 
14497 (March 22, 2006)).
    The Department is conducting this administrative review in 
accordance with section 751 of the Act.

Period of Review

    The POR is July 1, 2004, through June 30, 2005.

Scope of the Order

    The product covered by the order is canned pineapple fruit, 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. Imports of canned pineapple fruit are 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 canned pineapple fruit packed in a sugar-based 
syrup; HTSUS 2008.20.0090 covers CPF packed without added sugar (i.e., 
juice-packed). The HTSUS subheadings are provided for convenience and 
customs purposes. The written description of the merchandise covered by 
this order is dispositive.

Partial Preliminary Rescission of Review

    As noted above, PRAFT informed the Department that it had no 
shipments of subject merchandise to the United States during the POR. 
After receiving PRAFT's ``no shipments'' claim, the Department examined 
CBP entry data for the POR. These data support the conclusion that 
there were no entries, exports, or sales of subject merchandise from 
PRAFT during the POR. See memorandum to the file from Magd Zalok dated 
May 15, 2006. Further, on May 22, 2006, the Department requested that 
CBP notify it within 10 days if CBP had evidence of exports of subject 
merchandise from PRAFT during the POR. CBP has not notified the 
Department of such exports. See the memorandum to the file from Magd 
Zalok dated June 15, 2006. Therefore, in accordance with 19 CFR Sec.  
351.213(d)(3), and consistent with the Department's practice, we are 
preliminarily rescinding our review of PRAFT. See, e.g., Certain Steel 
Concrete Reinforcing Bars From Turkey; Final Results, Rescission of 
Antidumping Duty Administrative Review in Part, and Determination Not 
To Revoke in Part, 68 FR 53127, 53128 (September 9, 2003).

[[Page 44257]]

Use of Adverse Facts Available (AFA)

    Section 776(a)(2) of the Act provides that, if an interested party 
(A) Withholds information requested by the Department, (B) fails to 
provide such information by the deadline, or in the form or manner 
requested, (C) significantly impedes a proceeding, or (D) provides 
information that cannot be verified, the Department shall use, subject 
to sections 782(d) and (e) of the Act, facts otherwise available in 
reaching the applicable determination.
    Section 782(d) of the Act provides that, if the Department 
determines that a response to a request for information does not comply 
with the request, the Department will inform the person submitting the 
response of the nature of the deficiency and shall, to the extent 
practicable, provide that person the opportunity to remedy or explain 
the deficiency. If that person submits further information that 
continues to be unsatisfactory, or this information is not submitted 
within the applicable time limits, the Department may, subject to 
section 782(e) of the Act, disregard all or part of the original and 
subsequent responses, as appropriate.
    The evidence on the record of this review establishes that, 
pursuant to section 776(a)(2)(A) and (C) of the Act, the use of total 
facts available is warranted in determining the dumping margin for 
TROFCO because this company failed to provide requested information. 
Specifically, TROFCO failed to respond to the Department's antidumping 
questionnaire.
    On October 6, 2005, the Department informed TROFCO by letter that 
failure to respond to the request for information by October 13, 2005, 
may result in the use of AFA in determining its dumping margin. TROFCO, 
however, did not respond to the Department's October 6, 2005, letter. 
Because TROFCO failed to provide any of the necessary information 
requested by the Department and thus significantly impeded this segment 
of the proceeding, pursuant to sections 776(a)(2)(A) and (C) of the 
Act, we have based the dumping margin for TROFCO on the facts otherwise 
available (FA).

Use of Adverse Inferences

    Section 776(b) of the Act states that if the Department ``finds 
that an interested party has failed to cooperate by not acting to the 
best of its ability to comply with a request for information from the 
administering authority or the Commission, the administering authority 
or the Commission ..., in reaching the applicable determination under 
this title, may use an inference that is adverse to the interests of 
that party in selecting from among the facts otherwise available.'' See 
also Statement of Administrative Action (SAA) accompanying the Uruguay 
Round Agreements Act (URAA), H. Rep. No. 103-316 at 870 (1994). Section 
776(b) of the Act goes on to note that an adverse inference may include 
reliance on information derived from (1) the petition; (2) a final 
determination in the investigation under this title; (3) any previous 
review under section 751 or determination under section 753; or (4) any 
other information on the record. Adverse inferences are appropriate 
``to ensure that the party does not obtain a more favorable result by 
failing to cooperate than if it had cooperated fully.'' See SAA at 870. 
The Court of Appeals for the Federal Circuit (CAFC), in Nippon Steel 
Corporation v. United States, 337 F.3d 1373, 1380 (Fed. Cir. 2003), 
held that the Department need not show intentional conduct existed on 
the part of the respondent, but merely that a ``failure to cooperate to 
the best of a respondent's ability'' existed, i.e., information was not 
provided ``under circumstances in which it is reasonable to conclude 
that less than full cooperation has been shown.'' Id.
    The record shows that TROFCO failed to cooperate to the best of its 
ability within the meaning of section 776(b) of the Act. As noted 
above, TROFCO failed to provide any response to the Department's 
requests for information. As a general matter, it is reasonable for the 
Department to assume that TROFCO possessed the records necessary to 
participate in this review. Thus, by not supplying the information the 
Department requested, TROFCO failed to cooperate to the best of its 
ability. As TROFCO failed to cooperate to the best of its ability, we 
are applying an adverse inference in determining its dumping margin 
pursuant to section 776(b) of the Act. As AFA, we have preliminarily 
assigned to TROFCO a dumping margin of 51.16 percent, the highest 
margin determined for any respondent during any segment of this 
proceeding, consistent with section 776(b)(2) of the Act. This rate was 
calculated for a respondent in the less than fair value investigation. 
See Notice of Antidumping Duty Order and Amended Final Determination: 
Canned Pineapple Fruit From Thailand, 60 FR 36775 (July 18, 1995).

Corroboration of Information

    Section 776(c) of the Act requires the Department, to the extent 
practicable, to corroborate secondary information used as FA based on 
independent sources that are reasonably at its disposal. Secondary 
information is defined as ``{i{time} nformation derived from the 
petition that gave rise to the investigation or review, the final 
determination concerning the subject merchandise, or any previous 
review under section 751 concerning the subject merchandise.'' See SAA 
at 870 and 19 CFR Sec.  351.308(c).
    The SAA clarifies that ``corroborate'' means that the Department 
will satisfy itself that the secondary information to be used has 
probative value (see SAA at 870). The SAA also states that independent 
sources used to corroborate such information may include, for example, 
published price lists, official import statistics and customs data, and 
information obtained from interested parties during the particular 
investigation or review. Id. To corroborate secondary information, the 
Department will, to the extent practicable, examine the reliability and 
relevance of the information to be used. However, unlike other types of 
information, such as input costs or selling expenses, there are no 
independent sources to establish the reliability of calculated dumping 
margins. Thus, in an administrative review, if the Department chooses 
as total AFA a calculated dumping margin from a prior segment of the 
proceeding, it is not necessary to question the reliability of the 
margin for that time period. With respect to the relevancy aspect of 
corroboration, however, the Department will consider information 
reasonably at its disposal as to whether there are circumstances that 
would render a dumping margin inappropriate. Where circumstances 
indicate that the selected dumping margin is not appropriate as AFA, 
the Department will disregard the margin and determine an appropriate 
dumping margin. See, e.g., Fresh Cut Flowers from Mexico; Final Results 
of Antidumping Duty Administrative Review, 61 FR 6812, 6814 (February 
22, 1996) (where the Department disregarded the highest dumping margin 
as AFA because the margin was based on another company's 
uncharacteristic business expense resulting in an unusually high 
dumping margin). We have preliminarily determined that the 51.16 
percent rate is appropriate because it was calculated for another 
respondent in a prior segment of this proceeding, and it has not been 
judicially invalidated. Thus, we consider the calculated rate of 51.16 
to be corroborated.

Comparison Methodology

    In order to determine whether Vita sold CPF to the United States at 
prices less than NV, the Department compared

[[Page 44258]]

the export price (EP) of individual U.S. sales to the monthly weighted-
average NV of sales of the foreign like product made in the ordinary 
course of trade (see section 777A(d)(2) of the Act; see also section 
773(a)(1)(B)(i) of the Act). Section 771(16) of the Act defines foreign 
like product as merchandise that is identical or similar to subject 
merchandise and produced by the same person and in the same country as 
the subject merchandise. Thus, we considered all products covered by 
the scope of the order, that were produced by the same person and in 
the same country as the subject merchandise, and sold by Vita in the 
comparison market during the POR, to be foreign like products for the 
purpose of determining appropriate product comparisons to CPF sold in 
the United States. The Department compared U.S. sales to sales made in 
the comparison market within the contemporaneous window period, which 
extends from three months prior to the month in which the U.S. sale was 
made until two months after the month in which the U.S. sale was made. 
Where there were no sales of identical merchandise made in the 
comparison market in the ordinary course of trade, the Department 
compared U.S. sales to sales of the most similar foreign like product 
made in the ordinary course of trade. In making product comparisons, 
the Department selected identical and most similar foreign like 
products based on the physical characteristics reported by Vita in the 
following order of importance: weight, form, variety, and grade. Where 
there were no appropriate sales of foreign like product to compare to a 
U.S. sale, we compared the price of the U.S. sale to constructed value 
(CV), in accordance with section 773(a)(4) of the Act.

Export Price

    The Department based the price of each of Vita's U.S. sales of 
subject merchandise on EP, as defined in section 772(a) of the Act, 
because the merchandise was sold, prior to importation, to unaffiliated 
purchasers in the United States, or to unaffiliated purchasers for 
exportation to the United States and the use of constructed export 
price was not otherwise warranted based on the facts on the record. In 
accordance with section 772 (a) and (c) of the Act, we calculated EP 
using the prices Vita charged for packed subject merchandise, from 
which we made deductions for movement expenses, including, where 
applicable, charges for transportation, terminal handling, container 
stuffing, bill of lading preparation, Customs clearance, and legal and 
port fees documentation. See Analysis Memorandum for Vita Food Factory 
(1989) Co., Ltd., (Vita Analysis Memorandum) dated concurrently with 
this notice. We did not calculate EP using the post-sale, post-POR 
price adjustments reported by Vita because Vita failed to demonstrate 
that it is entitled to these adjustments (the post-sale adjustments 
benefitted Vita, and thus Vita bore the burden to demonstrate that it 
is entitled to these adjustments). See Corus Engineering Steels Ltd. v. 
United States, Slip Op. 2003-110, 2003 CIT Lexis 110 at * 11 (``The 
burden of proof is upon the claimant to prove entitlement.''). See also 
Vita's Post Sale Price Adjustment Memorandum, dated concurrently with 
this notice.

Normal Value

    After testing home market viability and whether comparison market 
sales were at below-cost prices, we calculated NV for Vita as noted in 
the ``Price-to-Price Comparisons'' and ``Price-to-CV Comparisons'' 
sections of this notice.

A. Home Market Viability

    In accordance with section 773(a)(1)(C) of the Act, in order to 
determine whether there was 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 
greater than or equal to five percent of the aggregate volume of U.S. 
sales), we compared the aggregate volume of Vita's home market sales of 
the foreign like product to the aggregate volume of its U.S. sales of 
subject merchandise. Because the aggregate volume of Vita's home market 
sales of foreign like product is less than five percent of the 
aggregate volume of its U.S. sales of subject merchandise, we based NV 
on sales of the foreign like product in a country other than Vita's 
home market. See section 773(a)(1)(B)(ii) of the Act. Specifically, we 
based NV for Vita on sales of the foreign like product in the 
Netherlands, the third-country market with the greatest volume of 
foreign like product sales.

B. Cost of Production (COP) Analysis

    In the most recently completed administrative review of the 
antidumping duty order on CPF from Thailand, the Department determined 
that Vita sold foreign like product at prices below the cost of 
producing the product and excluded such sales from the calculation of 
NV. As a result, in accordance with section 773(b)(2)(A)(ii) of the 
Act, the Department determined that there are reasonable grounds to 
believe or suspect that during the instant POR, Vita sold the foreign 
like product at prices below the cost of producing the product. Thus, 
the Department initiated a sales below cost inquiry with respect to 
Vita.
1. Calculation of COP
    In accordance with section 773(b)(3) of the Act, for each unique 
foreign like product sold by Vita during the POR, we calculated a 
weighted-average COP based on the sum of the respondent's materials and 
fabrication costs, selling, general and administrative (SG&A) expenses, 
including interest expenses, and packing costs. Consistent with the 
position taken by the Department in prior segments of this proceeding, 
for reporting purposes, Vita allocated joint product costs between 
solid and juice products using the net realizable value of the products 
during the five-year period 1990 through 1994. We relied on the costs 
submitted by Vita without exception.
2. Test of Comparison Market Sales Prices
    In order to determine whether sales were made at prices below the 
COP, on a product-specific basis we compared the respondent's weighted-
average COPs to the prices of its comparison market sales of foreign 
like product, as required under section 773(b) of the Act. In 
accordance with sections 773(b)(1)(A) and (B) of the Act, in 
determining whether to disregard comparison market sales made at prices 
less than the COP, we examined whether such sales were made: (1) in 
substantial quantities within an extended period of time; and (2) at 
prices which permitted the recovery of all costs within a reasonable 
period of time. We compared the COP to comparison market sales prices, 
less any applicable movement charges.
3. Results of the COP Test
    Pursuant to section 773(b)(2)(C) of the Act, where less than 20 
percent of a respondent's sales of a given product were made at prices 
less than the COP, we did not disregard any below-cost sales of that 
product because the below-cost sales were not made in ``substantial 
quantities.'' Where 20 percent or more of a respondent's sales of a 
given product were made at prices less than the COP during the POR, we 
determined such sales to have been made in ``substantial quantities'' 
and within an extended period of time (i.e., one year) pursuant to 
sections 773(b)(2)(B) and (C) of the Act. Based on our comparison of 
POR average costs to reported prices, we also determined, in accordance 
with

[[Page 44259]]

section 773(b)(2)(D) of the Act, that these sales were not made at 
prices which would permit recovery of all costs within a reasonable 
period of time. As a result, we disregarded these below-cost sales.

Price-to-Price Comparisons

    Where it was appropriate to base NV on prices, we used the prices 
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 possible, at the same level of 
trade (LOT) as the comparison U.S. sale.
    We based NV on the prices of Vita's sales to unaffiliated customers 
in the Netherlands. We made adjustments, where appropriate, for 
physical differences in the merchandise in accordance with section 
773(a)(6)(C)(ii) of the Act. In accordance with sections 773(a)(6)(A), 
(B), and (C) of the Act, where appropriate, we deducted from the 
starting price movement expenses, including, where applicable, charges 
for transportation, terminal handling, container stuffing, bill of 
lading preparation, customs clearance, and legal and port fees 
documentation. We also made circumstance of sale adjustments to account 
for differences in packing, credit and other direct selling expenses 
incurred in the comparison and U.S. markets. In addition, where 
applicable, pursuant to 19 CFR Sec.  351.410 (e), we made a reasonable 
allowance for other selling expenses where commissions were paid in 
only one of the markets under consideration. See Vita Analysis 
Memorandum. In accordance with the Department's practice, where all 
contemporaneous matches to a U.S. sale resulted in difference-in-
merchandise adjustments exceeding 20 percent of the cost of 
manufacturing the product sold in the United States, we based NV on CV.

Price-to-CV Comparisons

    In accordance with section 773(a)(4) of the Act, we based NV on CV 
when we were unable to compare the U.S. sale to a comparison market 
sale of an identical or similar product. For each unique CPF product 
sold by Vita in the United States during the POR, we calculated a 
weighted-average CV based on the sum of the respondent's materials and 
fabrication costs, SG&A expenses, including interest expenses, packing 
costs, and profit. In accordance with section 773(e)(2)(A) of the Act, 
we based SG&A expenses and profit on the amounts incurred and realized 
by the respondent in connection with the production and sale of the 
foreign like product, in the ordinary course of trade, for consumption 
in the Netherlands. We based selling expenses on weighted-average 
actual comparison market direct and indirect selling expenses.

Level of Trade

    In accordance with section 773(a)(1)(B) of the Act, to the extent 
practicable, we determined NV based on sales in the comparison market 
at the same LOT as the EP. The NV LOT is based on the starting price of 
the sales in the comparison market or, when NV is based on CV, the 
starting price of the sales from which we derive SG&A expenses and 
profit. For EP sales, the U.S. LOT is based on the starting price of 
the sales to the U.S. market.
    To determine whether NV sales are at a different LOT than the 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 a LOT adjustment under section 
773(a)(7)(A) of the Act. In determining whether separate LOTs exist, we 
obtained information from Vita regarding the marketing stages for the 
reported U.S. and comparison market sales, including a description of 
the selling activities performed by Vita for each channel of 
distribution. Generally, if the reported LOTs are the same, the 
functions and activities of the seller at each level should be similar. 
Conversely, if a party reports that LOTs are different for different 
groups of sales, the selling functions and activities of the seller for 
each group should be dissimilar.
    Vita reported that it sold the merchandise under review to two 
types of customers, sales agents and end users, in the United States 
and the Netherlands through one channel of distribution in each market. 
See Vita's September 22, 2005, and November 25, 2005, questionnaire 
responses at 18-24 and 11-13, respectively. In each channel of 
distribution, Vita engaged in the following selling activities for both 
types of customers: order processing, packing, freight and delivery, 
and paying sales commissions. Because the one sales channel in the 
United States involves the same functions for all sales, and the one 
sales channel in the Netherlands also involves the same functions for 
all sales, we have preliminarily determined that there is one LOT in 
the United States and one LOT in the Netherlands. Moreover, because 
Vita performed nearly identical selling functions for U.S. and Dutch 
sales (the only difference being that, at times, Vita arranged the 
international shipping for Dutch sales, whereas it did not provide this 
service for U.S. sales), we have preliminarily determined that, during 
the POR, Vita sold the foreign like product and subject merchandise at 
the same LOT. Therefore, we have determined that a LOT adjustment is 
not warranted.

Currency Conversion

    Pursuant to section 773A(a) of the Act, we converted amounts 
expressed in foreign currencies into U.S. dollar amounts based on the 
exchange rates in effect on the dates of the U.S. sales, as certified 
by the Federal Reserve Bank.

Preliminary Results of Review

    As a result of this review, we preliminarily determined that the 
following weighted-average dumping margins exist for the period July 1, 
2004, through June 30, 2005:

------------------------------------------------------------------------
                Manufacturer/Exporter                  Margin (percent)
------------------------------------------------------------------------
Vita Food Factory (1989) Ltd........................               16.14
Tropical Food Industries Co., Ltd...................               51.16
------------------------------------------------------------------------

Public Comment

    Within 10 days of publicly announcing the preliminary results of 
this review, we will disclose to interested parties, any calculations 
performed in connection with the preliminary results. See 19 CFR Sec.  
351.224(b). Any interested party may request a hearing within 30 days 
of the publication of this notice in the Federal Register. See 19 CFR 
Sec.  351.310(c). If requested, a hearing will be held 44 days after 
the date of publication of this notice in the Federal Register, or the 
first workday thereafter. Interested parties are invited to comment on 
the preliminary results of this review. The Department will consider 
case briefs filed by interested parties within 30 days after the date 
of publication of this notice in the Federal Register. Also, interested 
parties may file rebuttal briefs, limited to issues raised in the case 
briefs. The Department will consider rebuttal briefs filed not later 
than five days after the time limit for filing case briefs. Parties who 
submit arguments 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.

[[Page 44260]]

Further, we request that parties submitting written comments provide 
the Department with a diskette containing an electronic copy of the 
public version of such comments. Unless the deadline for issuing the 
final results of review is extended, the Department will issue the 
final results of this administrative review, including the results of 
its analysis of issues raised in the written comments, within 120 days 
of publication of the preliminary results in the Federal Register.

Assessment Rates

    In accordance with 19 CFR Sec.  351.212(b)(1), in these preliminary 
results of review, we calculated importer/customer-specific assessment 
rates for Vita's subject merchandise. Since Vita did not report the 
entered value for its sales, we calculated per-unit assessment rates 
for its merchandise by summing, on an importer or customer-specific 
basis, the dumping margins calculated for all U.S. sales to the 
importer or customer, and dividing this amount by the total quantity of 
those sales. If the importer/customer-specific assessment rate is above 
de minimis (i.e., 0.50 percent ad valorem or greater), we will instruct 
CBP to assess the importer/customer-specific rate uniformly, as 
appropriate, on all entries of subject merchandise during the POR that 
were entered by the importer or sold to the customer. To determine 
whether the per-unit duty assessment rates were de minimis (i.e., less 
than 0.50 percent ad valorem), in accordance with the requirement set 
forth in 19 CFR Sec.  351.106(c)(2), we calculated importer/customer-
specific ad valorem ratios based on the estimated entered value. For 
TROFCO, the respondent receiving a dumping margin based upon AFA, we 
will instruct CBP to liquidate entries according to the AFA ad valorem 
rate. Within 15 days of publication of the final results of review, the 
Department will issue instructions to CBP directing it to assess the 
final importer/customer-specific assessment rates (if above de minimis) 
uniformly on all entries of subject merchandise made by the relevant 
importer during the POR. The Department clarified its ``automatic 
assessment'' regulation on May 6, 2003 (68 FR 23954). This 
clarification applies to POR entries of subject merchandise produced by 
companies examined in this review (i.e., companies for which a dumping 
margin was calculated) where the companies did not know that their 
merchandise was destined for the United States. In such instances, we 
will instruct CBP to liquidate unreviewed entries at the all-others 
rate if there is no rate for the intermediate company(ies) involved in 
the transaction. For a full discussion of this clarification, see 
Antidumping and Countervailing Duty Proceedings: Assessment of 
Antidumping Duties, 68 FR 23954 (May 6, 2003).

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 this administrative review, as provided by section 
751(a)(1) of the Act: (1) The cash deposit rate for the reviewed 
companies will be the rate established in the final results of this 
review (except that if the rate for a particular company is de minimis, 
i.e., less than 0.5 percent, no cash deposit will be required for that 
company); (2) for previously investigated or reviewed companies not 
listed above, 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 this review, a prior review, or the 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 subject merchandise; and (4) the cash 
deposit rate for all other manufacturers or exporters will continue to 
be the ``all others'' rate of 24.64 percent, which is the ``all 
others'' rate established in the LTFV investigation. These cash deposit 
rates, when imposed, shall remain in effect until publication of the 
final results of the next administrative review.

Notification to Importers

    This notice also 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 and 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.
    We are issuing and publishing this notice in accordance with 
sections 751(a)(1) and 777(i)(1) of the Act.

    Dated: July 31, 2006.
David M. Spooner,
Assistant Secretary for Import Administration.
[FR Doc. E6-12654 Filed 8-3-06; 8:45 am]
BILLING CODE 3510-DS-S