[Federal Register Volume 75, Number 114 (Tuesday, June 15, 2010)]
[Notices]
[Pages 33772-33775]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-14382]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-557-813]
Polyethylene Retail Carrier Bags From Malaysia: Preliminary
Results of Antidumping Duty Administrative Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: At the request of interested parties, the Department of
Commerce (the Department) is conducting an administrative review of the
antidumping duty order on polyethylene retail carrier bags (PRCBs) from
Malaysia. The review covers one manufacturer/exporter. The period of
review is August 1, 2008, through July 31, 2009. We have preliminarily
determined that sales have been made at prices below normal value by
Euro Plastics Malaysia Sdn. Bhd. We invite interested parties to
comment on these preliminary results. Parties who submit comments in
this review are requested to submit with each argument a statement of
the issue and a brief summary of the argument.
DATES: Effective Date: June 15, 2010.
FOR FURTHER INFORMATION CONTACT: Jerrold Freeman or Richard Rimlinger,
AD/CVD Operations, Office 5, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-
0180 or (202) 482-4477, respectively.
SUPPLEMENTARY INFORMATION:
Background
On August 9, 2004, we published in the Federal Register the
antidumping duty order on PRCBs from Malaysia. See Antidumping Duty
Order: Polyethylene Retail Carrier Bags From Malaysia, 69 FR 48203
(August 9, 2004). On August 3, 2009, we published in the Federal
Register a notice of opportunity to request an administrative review of
the antidumping duty order on PRCBs from Malaysia. See Antidumping or
Countervailing Duty Order, Finding, or Suspended Investigation;
Opportunity To Request Administrative Review, 74 FR 38397 (August 3,
2009). Pursuant to section 751(a)(1) of the Tariff Act of 1930, as
amended (the Act), and 19 CFR 351.213(b), the Polyethylene Retail
Carrier Bag Committee and its individual members, Hilex Poly Co., LLC,
and Superbag Corporation (collectively, the petitioners), and Euro
Plastics Malaysia Sdn. Bhd. and its affiliated trading company,
Eplastics Procurement Center Sdn. Bhd. (collectively, Euro Plastics),
requested an administrative review of the antidumping duty order on
PRCBs from Malaysia with respect to Euro Plastics. On September 22,
2009, in accordance with 19 CFR 351.221(c)(1)(i), we initiated the
administrative review of the antidumping duty order on PRCBs from
Malaysia for the period of review. See Initiation of Antidumping and
Countervailing Duty Administrative Reviews and Request for Revocation
in Part, 74 FR 48224 (September 22, 2009).
Although Euro Plastics withdrew its request for the Department to
conduct the administrative review on October 30, 2009, the request by
the petitioners for the Department to conduct an administrative review
of Euro Plastics remains in effect.
As explained in the memorandum from the Deputy Assistant Secretary
for Import Administration, we have exercised our discretion to toll
deadlines for the duration of the closure of the Federal Government
from February 5 through February 12, 2010. Thus, all deadlines in this
segment of the proceeding have been extended by seven days. See
Memorandum to the Record from Ronald Lorentzen, DAS for Import
Administration, regarding ``Tolling of Administrative Deadlines As a
Result of the Government Closure During the Recent Snowstorm,'' dated
February 12, 2010. On May 7, 2010, we extended the due date for the
preliminary results of this administrative review to June 9, 2010. See
Polyethylene Retail Carrier Bags From Malaysia: Extension of Time Limit
for Preliminary Results of Antidumping Duty Administrative Review, 75
FR 25207 (May 7, 2010).
Period of Review
The period of review is August 1, 2008, through July 31, 2009.
Scope of the Order
The merchandise subject to the antidumping duty order is PRCBs
which may be referred to as t-shirt sacks, merchandise bags, grocery
bags, or checkout bags. The subject merchandise is defined as non-
sealable sacks and bags with handles (including drawstrings), without
zippers or integral extruded closures, with or without gussets, with or
without printing, of polyethylene film having a thickness no greater
than 0.035 inch (0.889 mm) and no less than 0.00035 inch (0.00889 mm),
and with no length or width shorter than 6 inches (15.24 cm) or longer
than 40 inches (101.6 cm). The depth of the bag may be shorter than 6
inches (15.24 cm) but not longer than 40 inches (101.6 cm).
PRCBs are typically provided without any consumer packaging and
free of charge by retail establishments, e.g., grocery, drug,
convenience, department, specialty retail, discount stores, and
restaurants, to their customers to package and carry their purchased
products. The scope of the order excludes (1) polyethylene bags that
are not printed with logos or store names and that are closeable with
drawstrings made of polyethylene film and (2) polyethylene bags that
are packed in consumer packaging with printing that refers to specific
end-uses other than packaging and carrying merchandise from retail
establishments, e.g., garbage bags, lawn bags, trashcan liners.
Imports of the subject merchandise are currently classifiable under
statistical category 3923.21.0085 of the Harmonized Tariff Schedule of
the United States (HTSUS). This subheading also covers products that
are outside the scope of the order. Furthermore, although the HTSUS
subheading is provided for convenience and customs purposes, the
written description of the scope of the order is dispositive.
Use of Adverse Facts Available
For the reasons discussed below, we determine that the use of
adverse facts available is appropriate for the preliminary results with
respect to Euro Plastics.
A. Use of Facts Available
Section 776(a)(2) of the Act provides that, if an interested party
withholds information requested by the administering authority, fails
to provide such information by the deadlines for submission of the
information and in the form or manner requested, significantly impedes
a proceeding under this title, or provides such information but the
information cannot be verified as provided in section 782(i) of the
Act, the Department shall use facts otherwise available in reaching the
applicable determination.
On September 28, 2009, we sent our questionnaire to Euro Plastics.
On October 30, 2009, Euro Plastics withdrew the request for the
Department to conduct the 2008-2009 administrative review because, as
explained in the submission, Euro
[[Page 33773]]
Plastics had been placed into receivership and no longer existed as
operating entities. Euro Plastics stated that, because the records and
information were in the custody of the receiver, Euro Plastics could
not provide the information necessary to participate in this review.
On April 27, 2010, we transmitted a supplemental questionnaire to
Euro Plastics via FedEx. We requested that Euro Plastics clarify its
operating status further, identify its receiver, and provide a company
official's certification statement for the October 30, 2009,
submission. The due date for the response to our supplemental
questionnaire was May 5, 2010. The April 27, 2010, supplemental
questionnaire stated that, if Euro Plastics was unable to respond by
the deadline, it must formally request an extension of time in writing
and provide an explanation for the request. Notwithstanding our efforts
to assist FedEx in the delivery of this questionnaire (see June 9,
2010, Memorandum to the File entitled ``Delivery of Supplemental
Questionnaire''), Euro Plastics received the questionnaire on May 6,
2010. The Department never received a response or a request for an
extension of time from Euro Plastics.
Because Euro Plastics did not respond to either the Department's
original or supplemental questionnaire, we are unable to calculate a
dumping margin for Euro Plastics. Accordingly, pursuant to sections
776(a)(2)(A) and (B) of the Act, we must rely entirely on facts
available.
B. Application of Adverse Inferences for Facts Available
In selecting among the facts otherwise available, section 776(b) of
the Act provides 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, the Department may use an
inference adverse to the interests of that party. In addition, the
Statement of Administrative Action accompanying the Uruguay Round
Agreements Act, H.R. Rep. 103-316, Vol. 1, 103d Cong. (1994), reprinted
in 1994 U.S.C.C.A.N. 4040 (SAA), establishes that the Department may
employ an adverse inference ``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 SAA also instructs the
Department to consider, in employing adverse inferences, ``the extent
to which a party may benefit from its own lack of cooperation.'' Id.
Moreover, ``affirmative evidence of bad faith on the part of a
respondent is not required before the Department may make an adverse
inference.'' See Antidumping Duties; Countervailing Duties, Final Rule,
62 FR 27296, 27340 (May 19, 1997).
We find that, by failing completely to respond to our
questionnaire, Euro Plastics withheld requested information and thus
failed to cooperate to the best of its ability. While the Department
may consider a company's inability to respond to questionnaires due to
the liquidation of its assets, the Department must be satisfied that
the record adequately demonstrates the company's inability to obtain
the requested data. Thus, the Department has also found that a party
has failed to act to the best of its ability where a party continues to
produce subject merchandise but fails to provide requisite information
to the Department. See Notice of Final Determination of Sales at Less
Than Fair Value: Steel Wire Rod From Germany, 63 FR 8953 (February 23,
1998). Because Euro Plastics failed to provide further information on
its operating status, receiver, and accessibility of its books and
records, the Department finds that Euro Plastics failed to act to the
best of its ability and, thus, an adverse inference is warranted in
selecting from facts otherwise available. By doing so, we ensure that
this company will not obtain a more favorable rate by failing to
cooperate than had it cooperated fully.
C. Selection of Information Used as Facts Available
Where the Department applies an adverse facts-available rate
because a respondent failed to cooperate by not acting to the best of
its ability to comply with a request for information, section 776(b) of
the Act authorizes the Department to rely on information derived from
the petition, a final determination, a previous administrative review,
or other information placed on the record. See also 19 CFR 351.308(c)
and the SAA at 870.
For the preliminary results, we have selected 101.74 percent as the
adverse facts-available dumping margin for Euro Plastics. The adverse
facts-available rate of 101.74 percent was the highest product-specific
margin presented by the petitioners in the less-than-fair-value
investigation of PRCBs from Malaysia. See Notice of Preliminary
Determination of Sales at Less Than Fair Value and Postponement of
Final Determination: Polyethylene Retail Carrier Bags from Malaysia, 69
FR 3557 (January 26, 2004). See also Notice of Final Determination of
Sales at Less Than Fair Value: Polyethylene Retail Carrier Bags From
Malaysia, 69 FR 34128 (June 18, 2004) (Final Determination). We
corroborated the information that we used to calculate the 101.74
percent in the less-than-fair-value investigation. See Final
Determination, 69 FR at 34129. We have selected this rate because we do
not have any additional information about this company in this review.
Moreover, we believe this rate is sufficiently high to ensure that Euro
Plastics does not obtain a more favorable result by failing to
cooperate.
D. Corroboration of Information
Section 776(c) of the Act provides that, when the Department relies
on secondary information as facts available, it must corroborate, to
the extent practicable, that information from independent sources that
are reasonably at its disposal. 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 may include,
for example, published price lists, official import statistics, and
customs data as well as information obtained from interested parties
during the particular proceeding. Id.
To corroborate secondary information, to the extent practicable,
the Department normally examines the reliability and relevance of the
information to be used. See, e.g., Ball Bearings and Parts Thereof from
France, et al.: Preliminary Results of Antidumping Duty Administrative
Reviews and Intent to Rescind Reviews in Part, 73 FR 25654, 25657 (May
7, 2008), unchanged in Ball Bearings and Parts Thereof From France, et
al.: Final Results of Antidumping Duty Administrative Reviews and
Rescission of Reviews in Part, 73 FR 52823, 52824 (September 11, 2008).
Unlike other types of information such as input costs or selling
expenses, there are no independent sources for calculated dumping
margins. The only sources for antidumping duty margins are
administrative determinations.
Thus, with respect to an administrative review, if the Department
chooses to use as facts available a petition rate which was
corroborated in the less-than-fair-value investigation and no
information has been presented in the current review that calls into
the question of reliability of this information, the information is
reliable. See, e.g., Certain Tissue Paper from the People's Republic of
China: Preliminary Results and Preliminary Rescission, In
[[Page 33774]]
Part, of Antidumping Duty Administrative Review, 72 FR 17477, 17480-81
(April 9, 2007), unchanged in Certain Tissue Paper Products from the
People's Republic of China: Final Results and Final Rescission, In
Part, of Antidumping Duty Administrative Review, 72 FR 58642, 58644-45
(October 16, 2007). Because our adverse facts-available rate of 101.74
percent in this review was corroborated in the Final Determination and
no information in the current review calls into the question of
reliability of this rate, we find that the adverse facts-available rate
of 101.74 percent is reliable.
With respect to the relevance aspect of corroboration, the
Department will consider information reasonably at its disposal to
determine whether a margin continues to have relevance. Where
circumstances indicate that the selected margin is not appropriate as
adverse facts available, the Department will disregard the margin and
determine an appropriate margin. For example, in Fresh Cut Flowers From
Mexico; Final Results of Antidumping Duty Administrative Review, 61 FR
6812, 6814 (February 22, 1996), the Department disregarded the highest
margin in that case as best information available (the predecessor to
facts available) because the margin was based on another company's
uncharacteristic business expense resulting in an unusually high
margin. Similarly, the Department does not apply a margin that has been
discredited or judicially invalidated. See D & L Supply Co. v. United
States, 113 F.3d 1220, 1221 (CAFC 1997).
In this review, there are no circumstances present to indicate that
the selected margin is not appropriate as adverse facts available.
Moreover, there is no information on the record of this review that
demonstrates that 101.74 percent is not an appropriate adverse facts-
available rate for Euro Plastics. We examined the transaction-specific
margins we determined for Euro Plastics in the administrative review of
the antidumping duty order on PRCBs from Malaysia covering the period
August 1, 2007, through July 31, 2008, and found a number of
transaction-specific margins in our calculations which were higher than
the adverse facts-available rate of 101.74 percent. See the June 9,
2010, Memorandum to the File entitled ``Polyethylene Retail Carrier
Bags From Malaysia: Placement on Record'' for details which contain
Euro Plastics's business-proprietary information. With the information
at our disposal for the corroboration of this adverse facts-available
rate, we find that the rate of 101.74 percent is corroborated to the
greatest extent practicable in accordance with section 776(c) of the
Act.
Because we are making an adverse inference with regard to Euro
Plastics based on the most recent information at our disposal, we
preliminarily find that the rate of 101.74 percent is a reasonable
indication of the margins that Euro Plastics would have received
concerning its U.S. transactions had it responded to our request for
information. We preliminarily find that use of the rate of 101.74
percent as adverse facts available is sufficiently high to ensure that
Euro Plastics does not benefit from failing to cooperate in our review
by refusing to respond to our questionnaire.
Preliminary Results of the Review
As a result of our review, we preliminarily determine that the
weighted-average dumping margin for PRCBs from Malaysia produced and/or
exported by Euro Plastics during the period August 1, 2008, through
July 31, 2009, is 101.74 percent.
Disclosure and Public Comment
We will disclose the memoranda cited above and the draft
liquidation instructions to parties to this review within five days of
the date of publication of this notice. See 19 CFR 351.224(b). Any
interested party may request a hearing within 30 days of the date of
publication of this notice. See 19 CFR 351.310. Interested parties who
wish to request a hearing or to participate in a hearing if a hearing
is requested must submit a written request to the Assistant Secretary
for Import Administration within 30 days of the date of publication of
this notice. Requests should contain the following: (1) The party's
name, address, and telephone number; (2) the number of participants;
(3) a list of issues to be discussed.
Issues raised in the hearing will be limited to those raised in the
case briefs. See 19 CFR 351.310(c). Case briefs from interested parties
may be submitted not later than 30 days after the date of publication
of this notice of preliminary results of review. See 19 CFR
351.309(c)(1)(ii). Rebuttal briefs from interested parties, limited to
the issues raised in the case briefs, may be submitted not later than
five days after the time limit for filing the case briefs or comments.
See 19 CFR 351.309(d)(1) and 19 CFR 351.310(c). Any hearing, if
requested, will be held two days after the scheduled date for
submission of rebuttal briefs. See 19 CFR 351.310(d). Parties who
submit case briefs or rebuttal briefs in this proceeding are requested
to submit with each argument a statement of the issue, a summary of the
arguments not exceeding five pages, and a table of statutes,
regulations, and cases cited. See 19 CFR 351.309(c)(2).
The Department will issue the final results of this administrative
review, including the results of its analysis of issues raised in any
such written briefs, not later than 120 days after the date of
publication of this notice. See section 751(a)(3)(A) of the Act.
Assessment Rates
Pursuant to 19 CFR 351.212(b), the Department will determine, and
CBP shall assess, antidumping duties on all appropriate entries.
Because we are relying on total adverse facts available to establish
the dumping margin for Euro Plastics, we intend to instruct CBP to
apply a dumping margin of 101.74 percent to PRCBs from Malaysia that
were produced and/or exported by Euro Plastics and entered, or
withdrawn from warehouse, for consumption during the period of review.
The Department intends to issue appropriate assessment instructions
to CBP 15 days after publication of the final results of review.
Cash-Deposit Requirements
The following cash-deposit requirements will be effective upon
publication of the notice of final results of administrative review for
all shipments of PRCBs from Malaysia entered, or withdrawn from
warehouse, for consumption on or after the date of publication, as
provided by section 751(a)(2)(C) of the Act: (1) The cash-deposit rate
for Euro Plastics will be the rate established in the final results of
this review; (2) for other previously reviewed or investigated
companies, 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 investigation but the manufacturer is, the cash-deposit rate
will be the rate established for the most recent period for the
manufacturer of the merchandise; (4) if neither the exporter nor the
manufacturer has its own rate, the cash-deposit rate will be 84.94
percent, the all-others rate established in the Notice of Final
Determination of Sales at Less Than Fair Value: Polyethylene Retail
Carrier Bags From Malaysia, 69 FR 34128 (June 18, 2004). These deposit
requirements, when imposed, shall remain in effect until further
notice.
Notification to Importers
This notice also serves as a preliminary reminder to importers of
[[Page 33775]]
their responsibility under 19 CFR 351.402(f) to file a certificate
regarding the reimbursement of antidumping duties prior to liquidation
of the relevant entries during the period of review. Failure to comply
with this requirement could result in the Department's presumption that
reimbursement of antidumping duties occurred and the subsequent
assessment of doubled antidumping duties.
These preliminary results of administrative review are issued and
published in accordance with sections 751(a)(1) and 777(i) of the Act
and 19 CFR 351.221(b)(4).
Dated: June 9, 2010.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 2010-14382 Filed 6-14-10; 8:45 am]
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