Antidumping: Canned pineapple fruit from— Thailand,

[Federal Register: October 10, 2006 (Volume 71, Number 195)]


[Page 59430-59432]

From the Federal Register Online via GPO Access []



International Trade Administration


Initiation of Antidumping Duty Administrative Review: Canned Pineapple Fruit from Thailand

AGENCY: Import Administration, International Trade Administration, Department of Commerce. SUMMARY: On August 30, 2006, the Department of Commerce (the Department) initiated an administrative review of the antidumping duty order on canned pineapple fruit (CPF) from Thailand. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Requests for Revocation in Part, 71 FR 51573 (August 30, 2006) (Initiation Notice). In that notice, the Department did not initiate a review of Tropical Food Industries Co. Ltd. (TROFCO) because the company's request for review was untimely filed. After considering the facts on the record, the Department is now initiating a review of TROFCO.

EFFECTIVE DATE: October 10, 2006.

[[Page 59431]]

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.



On July 3, 2006, 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, 71 FR 37890 (July 3, 2006). The Department received a request for review from one producer/ exporter, Vita Food Factory (1989) Ltd. (Vita), by the July 31, 2006 deadline, and initiated a review of Vita on August 30, 2006 (see Initiation Notice, 71 FR 51573).

On August 9, 2006, the Department received an untimely request for a review from the exporter/producer TROFCO. On September 5, 2006, we notified TROFCO that its review request was untimely filed, and thus we did not initiate a review of TROFCO. On September 18, 2006, the Department received a letter from DHL Express, the company used by TROFCO to transmit its review request, explaining that TROFCO sent its review request on July 22, 2006, and it should have been delivered to the Department, at the latest, by July 26, 2006; however, due to a delivery error by DHL, the request was not delivered to the Department until August 9, 2006. On September 20, 2006, TROFCO submitted a letter to the Department with a copy of the shipment/airwaybill and DHL tracking information showing that the request for review was correctly addressed but was initially delivered to the wrong address by DHL.\1\ On September 26, 2006, petitioners\2\ submitted a letter to the Department contending that the Department may not now initiate an administrative review of TROFCO because neither statutorily-required condition precedent to conducting an administrative review was satisfied; namely, the Department did not receive a timely review request from TROFCO, and did not publish a notice initiating a review of TROFCO.\3\ See section 751 (a)(1) of the Tariff Act of 1930, as amended, (the Act) and 19 CFR Sec. 351.103(b).

\1\ The Department rejected TROFCO's earlier attempt to file this submission because it was improperly filed. See the memorandum to the file from Magd Zalok dated concurrently with this notice.

\2\ The petitioners are Maui Pineapple Company Ltd. and the International Longshoreman's and Warehouseman's Union.

\3\ In support of their argument, the petitioners cite, among other cases, Cosco Home and Office Products v. United States, 350 F. Supp. 2d 1294 (Dec. 7, 2004), in which the Court of International Trade affirmed the Department's decision not to initiate an administrative review where there was no evidence that an exporter had filed a review request with the Department's Docket Center. Petitioners also cite to Pure Magnesium and Alloy Magnesium from Canada; Preliminary Results of Countervailing Duty Administrative Review, 70 FR 24530 (May 10, 2005), in which the Department rejected an exporter's review request filed one day late but continued the review based on petitioner's timely review request.

Initiation of Review

Although TROFCO's review request was not received by the Department until after the deadline for requesting an administrative review, the record of this proceeding indicates that if not for an error by DHL, TROFCO's review request would have been received by the Department on or before the deadline. Specifically, in DHL's September 18, 2006 letter to the Department a DHL official certified that TROFCO's review request was sent to the Department via DHL on July 22, 2006 and, under normal circumstances, should have been delivered to the Department by July 26, 2006 (five days before the July 31, 2006 deadline). Moreover, the tracking information supplied to the Department by TROFCO shows that the review request was received at a location near Washington D.C. on July 25, 2006 (i.e. Arlington Virginia), six days before the deadline for requesting a review.\4\ Lastly, we note that TROFCO sent its review request to the petitioners' counsel via DHL on the same day that it sent the request to the Department via DHL, and the request was delivered to the petitioners' counsel in the Washington D.C. area on July 25, 2006, six days before the review request was to be filed with the Department. While TROFCO's service of its review request on petitioners' counsel does not constitute an official filing, and the Department is not initiating a review of TROFCO based upon that service, delivery of that request before the July 31, 2006 deadline provides further support to conclude that TROFCO's request would have been delivered to the Department in a timely fashion but for the delivery error acknowledged by DHL. Although the Department's practice is to reject untimely requests for review, it nonetheless retains some flexibility to, where appropriate, relax its procedural rules. See Ferro Union, Inc. and Asoma Corporation v. United States, 44 F. Supp. 2d 1310, 1316 (CIT 1999) citing American Farm Lines v. Black Ball Freight Service, 397 U.S. 532, (1970)(``{i{time} t is always within the discretion of a court or an administrative agency to relax or modify its procedural rules adopted for the orderly transaction of business before it when in a given case the ends of justice require it.''). See also Notice of Initiation of Expedited Reviews of the Countervailing Duty Order: Certain Softwood Lumber Products from Canada, 67 FR 59252 (September 20, 2002) (accepting untimely filed requests for expedited reviews because the respondents made a good faith effort to properly file the requests and the requests were untimely for reasons beyond their control). Given the facts in this case, we have determined that it is appropriate to initiate an administrative review of the antidumping duty order on canned pineapple fruit from Thailand, for the period July 1, 2005 through June 30, 2006, with respect to TROFCO. We intend to issue the final results of this administrative review no later than July 31, 2007.

\4\ DHL apparently initially delivered the review request to the wrong address, despite the fact that the shipment/airway bill lists ``Import Administration Central Records Unit, Room B-099, U.S. Department of Commerce Pennsylvania Avenue and 14\th\ Street, N.W. Washington D.C. 20230'' as the delivery address.

During any administrative review covering all or part of a period falling between the first and second or third and fourth anniversary of the publication of an antidumping order under 19 CFR Sec. 351.211 or a determination under 19 CFR Sec. 351.218(f)(4) to continue an order or suspended investigation (after sunset review), the Secretary, if requested by a domestic interested party within 30 days of the date of publication of the notice of initiation of the review, will determine, consistent with FAG Italia v. United States, 291 F.3d 806 (Fed. Cir. 2002), as appropriate, whether antidumping duties have been absorbed by an exporter or producer subject to the review if the subject merchandise is sold in the United States through an importer that is affiliated with such exporter or producer. The request must include the name(s) of the exporter or producer for which the inquiry is requested.

Interested parties must submit applications for disclosure under administrative protective orders in accordance with 19 CFR Sec. 351.305.

This initiation and this notice are in accordance with section 751(a) of the Act and 19 CFR Sec. 351.221(c)(1)(i).

[[Page 59432]]

Dated: October 4, 2006. Thomas F. Futtner, Acting Office Director, AD/CVD Operations, Office 4, Import Administration.

[FR Doc. E6-16815 Filed 10-6-06; 8:45 am]


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