[Federal Register Volume 75, Number 157 (Monday, August 16, 2010)]
[Notices]
[Pages 49893-49900]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-20190]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-924]
Polyethylene Terephthalate Film, Sheet, and Strip From the
People's Republic of China: Preliminary Results and Preliminary
Rescission, in Part, of Antidumping Duty Administrative Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: In response to requests from interested parties, the
Department of Commerce (``the Department'') is conducting an
administrative review of the antidumping duty order on polyethylene
terephthalate film, sheet, and strip (``PET film'') from the People's
Republic of China (``PRC''). The period of review (``POR'') is November
6, 2008, through October 31, 2009. This administrative review covers
two mandatory respondents, and four separate rate respondents (i.e.,
one separate rate respondent that filed a separate rate certification,
one separate rate respondent that claimed it did not ship or sell
subject merchandise to the United States during the POR, and two
separate rate respondents who currently have a separate rate, but that
failed to either recertify the separate rate, or, in the alternative,
make a claim that they did not ship or sell subject merchandise to the
United States during the POR).
We have preliminarily determined that sales have been made below
normal value (``NV'') by certain companies subject to this review. If
these preliminary results are adopted in our final results of this
review, we will instruct U.S. Customs and Border Protection (``CBP'')
to assess antidumping duties on entries of subject merchandise during
the POR for which the importer-specific assessment rates are above de
minimis.
We invite interested parties to comment on these preliminary
results of review. Parties who submit comments are requested to submit
with each argument a statement of the issue and a brief summary of the
argument. We intend to issue the final results of this review no later
than 120 days from the date of publication of this notice.
FOR FURTHER INFORMATION CONTACT: Thomas Martin, 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) 482-3936.
SUPPLEMENTARY INFORMATION: The Department received a timely request
from DuPont Teijin Films, Mitsubishi Polyester Film, Inc., SKC, Inc.,
and Toray Plastics (America), Inc. (collectively, ``Petitioners''), in
accordance with 19 CFR 351.213(b)(1), for an administrative review of
the antidumping duty order on PET film from the PRC for six companies:
Fuwei Films (Shandong) Co., Ltd. (``Fuwei Films''), Shaoxing Xiangyu
Green Packing Co., Ltd. (``Green Packing''), Tianjin Wanhua Co., Ltd.
(``Wanhua''), Sichuan Dongfang Insulating Material
[[Page 49894]]
Co., Ltd. (``Dongfang''), Shanghai Xishu Electric Material Co., Ltd.
(``Xishu''), and Shanghai Uchem Co., Ltd. (``Uchem'').\1\ The
Department also received timely requests in accordance with 19 CFR
351.213(b)(2) for an administrative review from Fuwei Films, Green
Packing, and Wanhua. On December 23, 2009, the Department published a
notice of initiation of an antidumping duty administrative review on
PET film from the PRC, in which it initiated a review of Fuwei Films,
Green Packing, Wanhua, Dongfang, Xishu, and Uchem.\2\
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\1\ See also Polyethylene Terephthalate Film, Sheet, and Strip
From Brazil, the People's Republic of China and the United Arab
Emirates: Antidumping Duty Orders and Amended Final Determination of
Sales at Less Than Fair Value for the United Arab Emirates, 73 FR
66595 (November 10, 2008) (``Orders'').
\2\ See Initiation of Antidumping and Countervailing Duty
Administrative Reviews and Request for Revocation in Part, 74 FR
68229 (December 23, 2009) (``Initiation Notice'').
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On December 29, 2009, the Department placed on the record CBP
import data for the Harmonized Tariff Schedule of the United States
(``HTSUS'') subheading 3920.62.0090. On January 19, 2010, the
Department selected Fuwei Films and Green Packing as mandatory
respondents.\3\
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\3\ See Memorandum to Abdelali Elouaradia, Director, AD/CVD
Operations, Office 4, from Thomas Martin, International Trade
Compliance Analyst, AD/CVD Operations, Office 4, ``Respondent
Selection in the First Administrative Review of Polyethylene
Terephthalate Film, Sheet, and Strip from the People's Republic of
China,'' dated January 19, 2010 (``Respondent Selection Memo'').
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On January 20, 2010, the Department issued the antidumping
questionnaire to Fuwei Films and Green Packing. On January 22, 2010,
Wanhua filed a separate rate certification, and Dongfang certified that
it had no entries of subject merchandise during the POR. Between
February 26, 2010 and July 23, 2010, Fuwei Films and Green Packing
responded to the Department's questionnaire and supplemental
questionnaires, and Petitioners commented on the responses of Fuwei
Films and Green Packing.
In response to the Department's April 5, 2010, letter providing
parties with an opportunity to submit comments regarding surrogate
country and surrogate value (``SV'') selection,\4\ Petitioners filed
surrogate country and SV comments on April 19, 2010 and May 3, 2010,
respectively. On June 21, 24, and 29, 2010, Petitioners submitted
comments regarding data considerations for selecting a surrogate
country. Fuwei Films and Green Packing filed surrogate country and SV
rebuttal comments on June 18, 2010 and July 13, 2010.
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\4\ See Letter from Robert Bolling, Program Manager, Office 4,
to All Interested Parties, ``Antidumping Duty Administrative Review
of PET film from the People's Republic of China (PRC),'' dated April
5, 2010.
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Scope of the Order
The products covered by the order are all gauges of raw, pre-
treated, or primed PET film, whether extruded or co-extruded. Excluded
are metalized films and other finished films that have had at least one
of their surfaces modified by the application of a performance-
enhancing resinous or inorganic layer more than 0.00001 inches thick.
Also excluded is roller transport cleaning film which has at least one
of its surfaces modified by application of 0.5 micrometers of SBR
latex. Tracing and drafting film is also excluded. PET film is
classifiable under subheading 3920.62.00.90 of the HTSUS. While HTSUS
subheadings are provided for convenience and customs purposes, our
written description of the scope of the order is dispositive.
Intent To Rescind the Administrative Review, in Part
As noted above, Dongfang reported that it did not have any entries
of subject merchandise during the POR.\5\ The Department has not
obtained any evidence contradicting Dongfang's claims and, thus, has
preliminarily determined to rescind this administrative review with
respect to Dongfang pursuant to 19 CFR 351.213(d)(3).\6\
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\5\ See Dongfang's Entry of Appearance and No Sales
Certification, dated January 22, 2010.
\6\ See Respondent Selection Memo at Attachment I (CBP import
data indicating no shipments by Dongfang).
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Non-Market Economy Country Status
In every case conducted by the Department involving the PRC, the
PRC has been treated as a non-market economy (``NME'') country. In
accordance with section 771(18)(C)(i) of the Tariff Act of 1930, as
amended (the ``Act''), any determination that a foreign country is an
NME country shall remain in effect until revoked by the administering
authority. None of the parties to this proceeding have contested such
treatment. Accordingly, the Department calculated NV in accordance with
section 773(c) of the Act, which applies to NME countries.
Separate Rates
In proceedings involving NME countries, the Department has a
rebuttable presumption that all companies within the country are
subject to government control and, thus, should be assessed a single
antidumping duty rate. It is the Department's policy to assign all
exporters of subject merchandise in an NME country this single rate
unless an exporter can demonstrate that it is sufficiently independent
so as to be entitled to a separate rate. Exporters can demonstrate this
independence through the absence of both de jure and de facto
governmental control over export activities. The Department analyzes
each entity exporting the subject merchandise under a test set out in
the Notice of Final Determination of Sales at Less Than Fair Value:
Sparklers from the People's Republic of China, 56 FR 20588 (May 6,
1991) (``Sparklers''), as further developed in Notice of Final
Determination of Sales at Less Than Fair Value: Silicon Carbide from
the People's Republic of China, 59 FR 22585 (May 2, 1994) (``Silicon
Carbide''). However, if the Department determines that a company is
wholly foreign-owned or located in a market economy, then a separate
rate analysis is not necessary to determine whether it is independent
from government control.\7\ Fuwei Films submitted information
indicating that it is a wholly foreign-owned enterprise under Chinese
law.\8\ Therefore, for the purposes of these preliminary results, the
Department finds that it is not necessary to perform a separate-rate
analysis with respect to Fuwei Films.
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\7\ See Notice of Final Determination of Sales at Less Than Fair
Value: Creatine Monohydrate From the People's Republic of China, 64
FR 71104, 71104-71105 (December 20, 1999) (where the respondent was
wholly foreign-owned and, thus, qualified for a separate rate).
\8\ See Fuwei Films' March 12, 2010 Section A Questionnaire
response at question 2(a)(i).
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Green Packing and Wanhua reported that they are either wholly
Chinese-owned companies, or joint ventures between Chinese and Foreign
companies.\9\ Therefore, the Department must analyze whether these
respondents can demonstrate the absence of both de jure and de facto
governmental control over export activities.
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\9\ See Wanhua's January 22, 2010 Separate Rate Certification
response at question 2; see also Green Packing's March 12, 2010,
Section A Questionnaire response at question 2(a)(i).
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1. Absence of De Jure Control
The Department considers the following de jure criteria in
determining whether an individual company may be granted a separate
rate: (1) An absence of restrictive stipulations associated with an
individual exporter's business and export licenses; (2) any legislative
enactments decentralizing control of companies; and (3) other formal
measures by the government decentralizing control of companies.\10\
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\10\ See Sparklers, 56 FR at 20589.
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The evidence provided by Green Packing and Wanhua supports a
[[Page 49895]]
preliminary finding of de jure absence of governmental control based on
the following: (1) There is an absence of restrictive stipulations
associated with the companies' business and export licenses; (2) there
are applicable legislative enactments decentralizing control of PRC
companies; and (3) there are formal measures by the government
decentralizing control of PRC companies.\11\
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\11\ See Wanhua's January 22, 2010 Separate Rate Certification
response at questions 10 through 14; see also Green Packing's March
12, 2010, Section A Questionnaire response at question 2(d) through
2(f).
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2. Absence of De Facto Control
The Department typically considers four factors in evaluating
whether each respondent is subject to de facto governmental control of
its export functions: (1) Whether the export prices are set by or are
subject to the approval of a governmental agency; (2) whether the
respondent has authority to negotiate and sign contracts and other
agreements; (3) whether the respondent has autonomy from the government
in making decisions regarding the selection of management; and (4)
whether the respondent retains the proceeds of its export sales and
makes independent decisions regarding disposition of profits or
financing of losses.\12\ The Department has determined that an analysis
of de facto control is critical in determining whether respondents are,
in fact, subject to a degree of governmental control which would
preclude the Department from assigning separate rates.
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\12\ See Silicon Carbide, 59 FR at 22586-87; see also Notice of
Final Determination of Sales at Less Than Fair Value: Furfuryl
Alcohol From the People's Republic of China, 60 FR 22544, 22544-
22545 (May 8, 1995).
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We determine that the evidence on the record supports a preliminary
finding of de facto absence of governmental control with respect to
Green Packing and Wanhua based on record statements and supporting
documentation showing that the companies: (1) Set their own export
prices independent of the government and without the approval of a
government authority; (2) have the authority to negotiate and sign
contracts and other agreements; (3) have autonomy from the government
regarding the selection of management; and (4) retain the proceeds from
their sales and make independent decisions regarding disposition of
profits or financing of losses.\13\
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\13\ See Wanhua's January 22, 2010 Separate Rate Certification
response at questions 15 through 20; see also Green Packing's March
12, 2010, Section A Questionnaire response at questions 2(a)(iii)-
(v); 2(b)-(c); 2(g)-(q).
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The evidence placed on the record of this administrative review by
Green Packing and Wanhua demonstrates an absence of de jure and de
facto government control with respect to the companies' exports of the
merchandise under review, in accordance with the criteria identified in
Sparklers and Silicon Carbide. Therefore, we have preliminarily granted
Green Packing and Wanhua separate rate status.
Separate Rate Calculation
For exporters subject to administrative review that were determined
to be eligible for separate rate status, but were not selected as
mandatory respondents, the Department generally weight-averages the
rates calculated for the mandatory respondents, excluding any rates
that are zero, de minimis, or based entirely on facts available.\14\
Consequently, because the Department has calculated positive margins
for both mandatory respondents, Fuwei Films and Green Packing, in these
preliminary results, consistent with our practice, we have
preliminarily established a margin for the separate rate respondent
Wanhua based on the rates we calculated for the two mandatory
respondents. However, because there are only two respondents for which
a company-specific margin was calculated in this review, the Department
has calculated a simple average margin to ensure that the total import
quantity and value for each company is not inadvertently revealed. The
rate established for the separate rate respondents is 126.49 percent.
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\14\ See, e.g., Wooden Bedroom Furniture From the People's
Republic of China: Preliminary Results of Antidumping Duty
Administrative Review, Preliminary Results of New Shipper Review and
Partial Rescission of Administrative Review, 73 FR 8273, 8279
(February 13, 2008), unchanged in Wooden Bedroom Furniture from the
People's Republic of China: Final Results of Antidumping Duty
Administrative Review and New Shipper Review, 73 FR 49162 (August
20, 2008).
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The PRC-Wide Entity
1. Xishu and Uchem
Xishu and Uchem currently have separate rates.\15\ The record of
this review shows that Xishu and Uchem were named in the Initiation
Notice and, thus, they are subject to this administrative review.
However, Xishu and Uchem both failed to recertify their separate rates
using the separate rate certification provided at the Department's Web
site at http://ia.ita.doc.gov/nme/nme-sep-rate.html, to demonstrate
their continued eligibility for separate-rate status. Also, Xishu and
Uchem did not make a claim that they did not ship or sell subject
merchandise to the United States during the POR. As neither company
timely certified that it had no shipments or demonstrated that it was
entitled to a separate rate, the Department finds that each company is
properly considered to be part of the PRC-wide entity for this review.
In accordance with the Department's established NME methodology, a
party's separate rate status must be established in each segment of the
proceeding in which the party is involved.\16\ Thus, we preliminarily
determine that Xishu and Uchem are part of the PRC-wide entity, because
they have not demonstrated their entitlement to a separate rate or
certified that they had no shipments.
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\15\ Xishu currently has a separate rate only as part of a
producer/exporter combination with Uchem. See Orders, 73 FR at
66596.
\16\ See Sigma Corp. v. United States, 117 F.3d 1401, 1405-06
(Fed. Cir. 1997) (affirming Department's presumption of state
control over exporters in non market economy cases).
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Selection of a Surrogate Country
When the Department conducts an antidumping duty administrative
review of imports from an NME country, section 773(c)(1) of the Act
directs the Department to base NV, in most cases, on the NME producer's
factors of production (``FOP'') valued in a surrogate market-economy
country or countries considered appropriate by the Department. In
accordance with section 773(c)(4) of the Act, the Department will value
FOP using ``to the extent possible, the prices or costs of factors of
production in one or more market-economy countries that are--(A) at a
level of economic development comparable to that of the NME country,
and (B) significant producers of comparable merchandise.'' Further,
pursuant to 19 CFR 351.408(c)(2), the Department will normally value
FOP in a single country.
In the instant review, the Department identified India, Indonesia,
the Philippines, Colombia, Thailand, and Peru as a non-exhaustive list
of countries that are at a level of economic development comparable to
the PRC and for which good quality data is most likely available.\17\
On April 19, 2010, Petitioners proposed selecting Thailand as the
surrogate country because (1) the PRC and Thailand share comparable
levels of economic development, as evidenced by the fact that
Thailand's per capita gross national income is the closest to the PRC
among the countries
[[Page 49896]]
included in the Policy Memorandum listing potential surrogate
countries, and (2) Thailand is a significant producer of merchandise
identical to subject merchandise, PET film.\18\ On June 18, 2010, Fuwei
Films and Green Packing filed rebuttal comments arguing that the
Department should select India as the surrogate country.\19\
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\17\ See Memorandum from Carole Showers, Director, Office of
Policy, to Robert Bolling, Program Manager, Office 4, ``Request for
a List of Surrogate Countries for an Administrative Review of the
Antidumping Order on Polyethylene Terephthalate Film, Sheet, and
Strip from the People's Republic of China'' (April 5, 2010)
(``Policy Memorandum'').
\18\ See Letter from Petitioners to Secretary of Commerce,
``Polyethylene Terephthalate (PET) Film, Sheet, and Strip from the
People's Republic of China; Choice of Surrogate Country,'' (April
19, 2010).
\19\ See Letter from Respondents to Secretary of Commerce,
``Polyethylene Terephthalate (PET) Film, Sheet, and Strip from the
People's Republic of China: Rebuttal Comments to the Petitioners'
April 19, 2010, Surrogate Country Selection Comments'' (June 18,
2010).
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The Department finds that both Thailand and India are at a level of
economic development comparable to that of the NME country and are
significant producers of comparable merchandise.\20\ Thus, the
Department bases its selection of a surrogate country on the
availability of contemporaneous Indian and Thai data for valuing FOP.
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\20\ See Memorandum to Abdelali Elouaradia, Director, AD/CVD
Operations, Office 4, from Thomas Martin, International Trade
Compliance Analyst, ``Antidumping Duty Administrative Review of
Polyethylene Terephthalate Film, Sheet, and Strip from the People's
Republic of China: Selection of a Surrogate Country,'' dated August
9, 2010 (``Surrogate Country Memo'') at 5-7.
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With respect to data considerations, in selecting a surrogate
country, Policy Bulletin 04.1 describes the Department's practice.
Specifically, `` * * * if more than one country has survived the
selection process to this point, the country with the best factors data
is selected as the primary surrogate country.'' \21\ Currently, the
record contains SV information, including possible surrogate financial
statements, from Thailand and India. However, the Department has
determined that the financial statements from Thailand do not permit
the Department to calculate accurately surrogate financial ratios.\22\
Therefore, the Department has preliminarily determined to select India
as the surrogate country on the basis that: (1) It is at a comparable
level of economic development to the PRC, pursuant to 773(c)(4) of the
Act; (2) it is a significant producer of comparable merchandise; and
(3) we have reliable data from India that we can use to value the
FOP.\23\ Accordingly, we have calculated NV using Indian prices, when
available and appropriate, to value the FOP of Fuwei Films and Green
Packing.\24\ In accordance with 19 CFR 351.301(c)(3)(ii), interested
parties may submit publicly-available information to value FOP until 20
days after the date of publication of the preliminary results.\25\
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\21\ See Policy Bulletin 04.1: Non-Market Economy Surrogate
Country Selection Process, (March 1, 2004) (``Policy Bulletin
04.1'') available at http://ia.ita.doc.gov.
\22\ See Surrogate Country Memo at 8-10.
\23\ See Surrogate Country Memo.
\24\ See Memorandum to the File through Robert Bolling, Program
Manager, AD/CVD Operations, Office 4, from Thomas Martin,
International Trade Compliance Analyst, ``Antidumping Duty
Administrative Review of Polyethylene Terephthalate Film, Sheet, and
Strip from the People's Republic of China: Selection of Factor
Values,'' dated August 9, 2010 (``Surrogate Value Memorandum'').
\25\ In accordance with 19 CFR 351.301(c)(1), for the final
results of this administrative review, interested parties may submit
factual information to rebut, clarify, or correct factual
information submitted by an interested party less than ten days
before, on, or after, the applicable deadline for submission of such
factual information. However, the Department notes that 19 CFR
351.301(c)(1) permits new information only insofar as it rebuts,
clarifies, or corrects information placed on the record. The
Department generally will not accept the submission of additional,
previously absent-from-the-record alternative SV information
pursuant to 19 CFR 351.301(c)(1). See Glycine from the People's
Republic of China: Final Results of Antidumping Duty Administrative
Review and Final Rescission, in Part, 72 FR 58809 (October 17,
2007), and accompanying Issues and Decision Memorandum at Comment 2.
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Fair Value Comparisons
In accordance with section 777A(d)(2) of the Act, to determine
whether Fuwei Films and Green Packing sold PET film to the United
States at less than NV, we compared the export prices (``EP'') and
constructed export prices (``CEP'') of individual transactions of the
PET film to the NV of the PET film, as described in the ``U.S. Price,''
and ``Normal Value'' sections of this notice.
U.S. Price
In accordance with section 772(a) of the Act, the Department used
EP as the basis for U.S. price for Fuwei Films' and Green Packing's
sales where the first sale to unaffiliated purchasers were made prior
to importation and the use of CEP was not otherwise warranted. In
accordance with section 772(c)(2)(A) of the Act, the Department
calculated EP for Fuwei Films and Green Packing by deducting the
following expenses from the starting price (gross unit price) charged
to the first unaffiliated customer in the United States: Foreign inland
freight from the plant to the port of exportation, domestic inland
insurance, foreign brokerage and handling, international freight, and
marine insurance. Additionally, the Department based movement expenses
on SVs where the service was purchased from a PRC company.\26\ For
details regarding our EP calculations, see Memorandum to the File
through Robert Bolling, Program Manager, AD/CVD Operations, Office 4,
from Thomas Martin, International Trade Compliance Analyst,
``Calculation Memorandum for the Preliminary Results of the First
Administrative Review of Polyethylene Terephthalate Film, Sheet, and
Strip from the People's Republic of China: Fuwei Films (Shandong) Co.,
Ltd.,'' dated August 9, 2010 (``Fuwei Calculation Memo''); see also
Memorandum to the File through Robert Bolling, Program Manager, AD/CVD
Operations, Office 4, from Thomas Martin, International Trade
Compliance Analyst, ``Calculation Memorandum for the Preliminary
Results of the First Administrative Review of Polyethylene
Terephthalate Film, Sheet, and Strip from the People's Republic of
China: Shaoxing Xiangyu Green Packing Co., Ltd.,'' dated August 9, 2010
(``Green Packing Calculation Memo'').
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\26\ See Surrogate Value Memorandum.
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In accordance with section 772(b) of the Act, the Department used
CEP as the basis for U.S. price for Fuwei Films' sales where Fuwei
Films first sold subject merchandise to its affiliated company in the
United States, which in turn sold subject merchandise to unaffiliated
U.S. customers. In accordance with section 772(b) of the Act, CEP is
the price at which the subject merchandise is first sold (or agreed to
be sold) in the United States before or after the date of importation
by or for the account of the producer or exporter of such merchandise
or by a seller affiliated with the producer or exporter, to a purchaser
not affiliated with the producer or exporter, as adjusted under
sections 772(c) and (d) of the Act. The Department calculated CEP for
Fuwei Films based on delivered prices to unaffiliated purchasers in the
United States and made deductions, where applicable, from the U.S.
sales price for movement expenses in accordance with section
772(c)(2)(A) of the Act. These movement expenses included foreign
inland freight from the plant to the port of exportation, domestic
inland insurance, international freight, marine insurance, U.S. customs
duty, U.S. inland freight from port to the warehouse, and U.S. inland
freight from the warehouse to the customer. In accordance with section
772(d)(1) of the Act, the Department deducted credit expenses and
indirect selling expenses from the U.S. price, all of which relate to
commercial activity in the United States. Finally, the Department
deducted CEP profit, in accordance with sections 772(d)(3) and 772(f)
of the Act. For details regarding the CEP calculation, see Fuwei
Calculation Memo.
[[Page 49897]]
Normal Value
Section 773(c)(1) of the Act provides that the Department shall
determine NV using an FOP methodology if the merchandise is exported
from an NME country and the available information does not permit the
calculation of NV using home-market prices, third-country prices, or
constructed value under section 773(a) of the Act. When determining NV
in an NME context, the Department uses an FOP methodology because the
presence of government controls on various aspects of NMEs renders
price comparisons and the calculation of production costs invalid under
its normal methodologies.\27\ Under section 773(c)(3) of the Act, FOP
include, but are not limited to: (1) Hours of labor required; (2)
quantities of raw materials employed; (3) amounts of energy and other
utilities consumed; and (4) representative capital costs. The
Department based NV on FOP reported by the respondents for materials,
energy, labor and packing.
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\27\ See Tapered Roller Bearings and Parts Thereof, Finished or
Unfinished, From the People's Republic of China: Preliminary Results
of Antidumping Duty Administrative Review and Notice of Intent to
Rescind in Part, 70 FR 39744, 39754 (July 11, 2005), unchanged in
Tapered Roller Bearings and Parts Thereof, Finished and Unfinished,
from the People's Republic of China: Final Results of 2003-2004
Administrative Review and Partial Rescission of Review, 71 FR 2517,
2521 (January 17, 2006).
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Thus, in accordance with section 773(c) of the Act, we calculated
NV by adding together the values of the FOP, overhead, selling, general
and administrative (``SG&A'') expenses, profit, and packing costs.\28\
We calculated FOP values by multiplying the reported per-unit factor-
consumption rates by publicly available SVs (except as discussed
below). Specifically, we valued material, labor, energy, and packing by
multiplying the amount of the factor consumed in producing subject
merchandise by the average unit SV of the factor. In addition, we added
freight costs to the surrogate costs that we calculated for material
inputs. We calculated freight costs by multiplying surrogate freight
rates by the shorter of the reported distance from the domestic
supplier to the factory that produced the subject merchandise or the
distance from the nearest seaport to the factory that produced the
subject merchandise, as appropriate. This adjustment is in accordance
with the U.S. Court of Appeals for the Federal Circuit's decision in
Sigma Corp. v. United States, 117 F.3d 1401, 1407-08 (Fed. Cir. 1997).
We calculated surrogate overhead expenses, SG&A expenses, and profit,
and added these to the FOP costs.\29\
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\28\ We applied SVs to the FOP, as indicated in the ``Selected
Surrogate Values'' section below.
\29\ See Fuwei Calculation Memo at 10; see also Green Packing
Calculation Memo at 7.
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With respect to the application of the by-product offset to NV,
consistent with the Department's determination in Final Determination
of Sales at Less Than Fair Value and Final Partial Affirmative
Determination of Critical Circumstances: Diamond Sawblades and Parts
Thereof from the People's Republic of China, 71 FR 29303 (May 22,
2006), and accompanying Issues and Decisions Memorandum at Comment 9,
unchanged in Notice of Amended Final Determination of Sales at Less
Than Fair Value: Diamond Sawblades and Parts Thereof from the People's
Republic of China, 71 FR 35864 (June 22, 2006) (``Diamond Sawblades''),
because our surrogate financial statements contain no references to the
treatment of by-products and because Fuwei Films and Green Packing
reported that they sold certain by-products, ``wasted film'' and PET
chip by-product, we will deduct the SV of these by-products from NV.
This is consistent with accounting principles based on a reasonable
assumption that if a company sells a by-product, the by-product
necessarily incurs expenses for overhead, SG&A, and profit.\30\
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\30\ See, e.g., Diamond Sawblades.
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Selected Surrogate Values
In selecting the SVs, we considered the quality, specificity, and
contemporaneity of the data.
In selecting the best available information for valuing FOP in
accordance with section 773(c)(1) of the Act, the Department's practice
is to select, to the extent practicable, SVs which are non-export
average values, most contemporaneous with the POR, product-specific,
and tax-exclusive.\31\ The record shows that the Indian import
statistics represent import data that are contemporaneous with the POR,
product-specific, and tax-exclusive.
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\31\ See, e.g., Pure Magnesium from the People's Republic of
China: Preliminary Results of 2007-2008 Antidumping Duty
Administrative Review, 74 FR 27090, 27094 (June 8, 2009), unchanged
in Pure Magnesium from the People's Republic of China: Final Results
of Antidumping Duty Administrative Review, 74 FR 66089 (December 14,
2009).
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In past cases, it has been the Department's practice to value
various FOP using import statistics of the primary selected surrogate
country from World Trade Atlas (``WTA''), as published by Global Trade
Information Services (``GTIS'').\32\ However, in a recent case, the
OCTG Final, the Department explained, based on discussions with GTIS,
that the Indian import data obtained from the WTA, as published by
GTIS, began identifying the original reporting currency for India as
the U.S. Dollar rather than the Indian rupee, as was previously
reported by GTIS for Indian import data.\33\ While the original India
import data \34\ obtained by GTIS are denominated and published in
Indian rupees, in the OCTG Final, the Department noted that GTIS made a
decision to change the original reporting currency for Indian data from
the Indian Rupee to the U.S. Dollar in order to reduce the loss of the
number of significant digits when obtaining data through the WTA
software. Additionally, in the OCTG Final, the Department also noted
that subsequently, GTIS restored the ability to view Indian Rupee
values in the WTA software for Indian import data. However, because
these data were twice converted,\35\ it was found that these data would
not correspond to the original India data based on the WTA software's
capability to only handle a limited number of significant digits in
each conversion calculation.
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\32\ See, e.g., Certain Preserved Mushrooms From the People's
Republic of China: Preliminary Results of Antidumping Duty New
Shipper Review, 74 FR 50946, 50950 (October 2, 2009), unchanged in
Certain Preserved Mushrooms From the People's Republic of China:
Final Results of Antidumping Duty New Shipper Review, 74 FR 65520
(December 10, 2009).
\33\ See Certain Oil Country Tubular Goods from the People's
Republic of China: Final Determination of Sales at Less Than Fair
Value, Affirmative Final Determination of Critical Circumstances and
Final Determination of Targeted Dumping, 75 FR 20335 (April 19,
2010) and accompanying Issues and Decision Memorandum at Comment 4
(``OCTG Final'').
\34\ GTIS obtains data on imports into India directly from the
Ministry of Commerce, Government of India.
\35\ Converted from Indian Rupee to U.S. Dollar, then converted
from U.S. Dollar to Indian Rupee.
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Because of conversion and rounding in the data reported by the WTA,
the Department will now obtain import statistics from Global Trade
Atlas (``GTA''), as published by GTIS in October 2009, for valuing
various FOP. The data reported in the GTA software reports import
statistics, such as from India, in the original reporting currency and
thus these data correspond to the original currency value reported by
each country. Additionally, the data reported in the GTA software are
reported to the nearest digit and thus there is not a loss of data by
rounding, as there is with the data reported by the WTA software.
Consequently the import statistics we obtain from GTA have the same
level of accuracy as the original data released.
In accordance with the OTCA 1988 legislative history, the
Department continues to apply its long-standing
[[Page 49898]]
practice of disregarding SVs if it has a reason to believe or suspect
the source data may be subsidized.\36\ In this regard, the Department
has previously found that it is appropriate to disregard such prices
from e.g., Indonesia and South Korea, because we have determined that
these countries maintain broadly available, non-industry specific
export subsidies.\37\ Based on the existence of these subsidy programs
that were generally available to all exporters and producers in these
countries at the time of the POR, the Department finds that it is
reasonable to infer that all exporters from certain countries may have
benefitted from these subsidies. Additionally, we excluded from our
calculations imports that were labeled as originating from an
unspecified country because we could not determine whether they were
from either an NME country, or from a country with generally available
subsidy programs. Where we could only obtain SVs that were not
contemporaneous with the POR, we inflated (or deflated) the SVs using
the Indian Wholesale Price Index (``WPI'') as published in the
International Financial Statistics of the International Monetary
Fund.\38\
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\36\ See Omnibus Trade and Competitiveness Act of 1988, Conf.
Report to Accompany H.R. 3, H.R. Rep. No. 576, 590, 100th Cong., 2nd
Sess. (1988) (``OTCA 1988'').
\37\ See e.g., Certain Cut-to-Length Carbon-Quality Steel Plate
from Indonesia: Final Results of Expedited Sunset Review, 70 FR
45692 (August 8, 2005) and accompanying Issues and Decision
Memorandum at 4; See Corrosion-Resistant Carbon Steel Flat Products
from the Republic of Korea: Final Results of Countervailing Duty
Administrative Review, 74 FR 2512 (January 15, 2009) and
accompanying Issues and Decision Memorandum at 17, 19-20.
\38\ See Surrogate Value Memorandum at 2 and Exhibit 2.
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We valued FOP in the preliminary results of this review using SVs,
as follows (see Surrogate Value Memorandum for more specific details).
We valued PET Chips, Paper Core, Iron Clip, Plywood, Wooden Pallets,
Plastic Cap, Labels, Plastic Packing Band, Stretch Wrap Film, Plastic
Bag, Paper Plate, PE Foam using November 2008 through October 2009
weighted-average Indian import values derived from the GTA. See http://www.gtis.com/gta.htm. The Indian import statistics that we obtained
from the GTA were published by the Directorate General of Commercial
Intelligence and Statistics of the Ministry of Commerce and Industry,
Government of India, and are contemporaneous with the POR.\39\
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\39\ See Surrogate Value Memorandum at 3-4 and Exhibit 1.
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We valued water using the revised Maharashtra Industrial
Development Corporation water rates available at http://www.midcindia.com/water-supply. The rates were contemporaneous with the
POR.\40\
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\40\ See Surrogate Value Memorandum at 5 and Exhibit 4.
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We valued steam using an average unit value obtained from
information in the publicly-available financial statements of Hindalco
Industries Limited, an Indian producer of aluminum products that
reported its steam consumption during the fiscal year April 2007
through March 2008. We inflated the value for steam using the POR
average WPI rate.\41\
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\41\ See Surrogate Value Memorandum at 5 and Exhibit 5.
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We valued electricity using rates for large industries at 33 Kilo
Volts, as published by the Central Electricity Authority of the
Government of India in ``Electricity Tariff & Duty and Average Rates of
Electricity Supply in India'', dated March 2008. These electricity
rates represent actual country-wide, publicly available information on
tax-exclusive electricity rates charged to industries in India. As the
rates listed in this source became effective on a variety of different
dates, we are not adjusting the average value for inflation.\42\
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\42\ See Surrogate Value Memorandum at 4 and Exhibit 3.
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We valued natural gas using April through June 2002 data from the
Gas Authority of India Ltd. Since the rates are not contemporaneous
with the POR, we inflated the values using the WPI.\43\
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\43\ See Surrogate Value Memorandum at 5 and Exhibit 6.
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We valued truck freight using a per-unit average rate calculated
from POR data on the following Web site: http://www.infobanc.com/logistics/logtruck.htm. The logistics section of this website contains
inland freight truck rates between many large Indian cities. The rates
were contemporaneous with the POR.\44\
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\44\ See Surrogate Value Memorandum at 8 and Exhibit 12.
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We valued domestic inland insurance using information submitted by
Agro Dutch Industries Limited in the sixth administrative review of the
antidumping proceeding of Certain Preserved Mushrooms from India, for
the period February 2004 through January 2005.\45\ The Department
inflated the domestic inland insurance value using the appropriate WPI
inflator.\46\
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\45\ See Agro Dutch Industries Ltd.'s section A-D submission,
dated May 24, 2005, at Exhibit B-1; (see also Certain Preserved
Mushrooms From India: Final Results of Antidumping Duty
Administrative Review, 71 FR 10646 (March 2, 2006)).
\46\ See Surrogate Value Memorandum at 8 and Exhibit 10.
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To value the respondents' international ocean freight from the PRC
to the United States on NME carriers in instances where the exporter
was responsible for these charges, the Department is using data
obtained from the Descartes Carrier Rate Retrieval Database
(``Descartes''), which can be accessed via http://descartes.com/. The
Descartes rates were contemporaneous with the POR.\47\
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\47\ See Surrogate Value Memorandum at 8 and Exhibit 13.
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We valued marine insurance using the price quote retrieved from RJG
Consultants, online at http://www.rjgconsultants.com/163.html, a
market-economy provider of marine insurance. The price quote was
contemporaneous with the POR.\48\
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\48\ See Surrogate Value Memorandum at 7 and Exhibit 9.
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The Department valued brokerage and handling using a fee schedule
of brokerage and handling charges for a standardized cargo of goods in
India. The fee schedule was compiled based on a survey case study of
the procedural requirements for a standard shipment of goods by ocean
transport in India that is published in Doing Business 2010: India, by
the World Bank. The price list data is contemporaneous with the
POR.\49\
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\49\ See Surrogate Value Memorandum at 8 and Exhibit 11.
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Fuwei Films and Green Packing claimed by-product offsets since they
produced certain by-products, and were able to demonstrate a commercial
value for the by-product by having sold a portion of this production
during the POR. We valued these by-products using GTA data for entries
under HTSUS number 3915.90.90 (``Waste, Parings and Scrap, of Plastics;
Other'').\50\
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\50\ See Surrogate Value Memorandum at 4 and Exhibit 1.
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For direct, indirect, and packing labor, pursuant to a recent
decision by the Court of Appeals for the Federal Circuit, we revised
our calculation of the hourly wage rate to use in valuing each
respondent's reported labor input by averaging earnings and/or wages in
countries that are economically comparable to the PRC and that are
significant producers of comparable merchandise.\51\ Because this wage
rate does not separate the labor rates into different skill levels or
types of labor, the Department has applied the same wage rate to all
skill levels and types of labor reported by the respondents.\52\
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\51\ See Dorbest Ltd. v. United States, 604 F.3d 1363, 1372-73
(Fed. Cir. 2010). See also Surrogate Value Memorandum at 5-7 for a
detailed discussion of the Department's revised labor wage rate
methodology.
\52\ See Surrogate Value Memorandum at 5-7 and Exhibit 7.
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[[Page 49899]]
Lastly, we valued SG&A expenses, factory overhead costs, and profit
using the contemporaneous 2008-2009 financial statements of Polyplex
Corporation Ltd., an Indian producer of PET film.\53\ As both
Petitioners and the respondents have pointed out, the 2008-2009
financial statement of Polyplex Corporation Ltd. shows evidence of
participation in the Duty Entitlement Passbook scheme at page 61, which
the Department has found to be a countervailable subsidy. See Carbazole
Violet Pigment 23 From India: Final Results of Countervailing Duty
Administrative Review, 75 FR 33243 (June 11, 2010) and the accompanying
Issues and Decision Memorandum at II.A.2. However, since there are
currently no other financial statements on the record of this
administrative review that the Department can use to calculate the
surrogate financial ratios, we have determined that the 2008-2009
financial statement of Polyplex Corporation Ltd. is the best available
information for calculating surrogate financial ratios. See section
773(c)(1) of the Act (``* * * the valuation of the factors of
production shall be based on the best available information regarding
the values of such factors in a market economy country * * *'').
Therefore, based on the above data considerations, we consider India to
have the most appropriate surrogate financial ratio data for use in
this proceeding.\54\
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\53\ See Surrogate Value Memorandum at 7 and Exhibit 8.
\54\ See Surrogate Value Memorandum at 7 and Exhibit 8.
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Further, consistent with the Department's practice to not rely on
incomplete surrogate financial statements, we did not use the 2008-2009
financial statement of Ester Industries Ltd. placed on the record by
Fuwei Films and Green Packing, because these respondents' joint
submission failed to include a significant portion of the financial
statement.\55\ See Surrogate Country Memo at 9.
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\55\ See Surrogate Country Memo at 9.
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Currency Conversion
We made currency conversions into U.S. dollars, in accordance with
section 773A(a) of the Act, 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
We preliminarily determine that the following dumping margins exist
for Fuwei Films, Green Packing, Wanhua, and the PRC-Entity, for the
period November 6, 2008, through October 31, 2009:
------------------------------------------------------------------------
Antidumping
Exporter duty percent
margin
------------------------------------------------------------------------
Fuwei Films (Shandong) Co., Ltd......................... 122.58
Shaoxing Xiangyu Green Packing Co., Ltd................. 130.39
Tianjin Wanhua Co., Ltd................................. 126.49
PRC-wide Entity \56\.................................... 76.72
------------------------------------------------------------------------
Disclosure
The Department will disclose calculations performed for these
preliminary results to the parties within five days after the date of
publication of these preliminary results of review in accordance with
19 CFR 351.224(b).
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\56\ Shanghai Xishu Electric Material Co., Ltd. and Shanghai
Uchem Co., Ltd. are part of the PRC-wide entity.
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Comments
Interested parties may submit written comments no later than 30
days after the date of publication of these preliminary results of
review. See 19 CFR 351.309(c)(1)(ii). Rebuttal comments must be limited
to the issues raised in the written comments and may be filed no later
than five days after the time limit for filing the case briefs. See 19
CFR 351.309(d). Parties submitting written comments or rebuttal
comments are requested to provide the Department with an additional
copy of those comments on CD-R. Any interested party may request a
hearing within 30 days of publication of these preliminary results. See
19 CFR 351.310(c). Any hearing, if requested, ordinarily will be held
two days after the scheduled date for submission of rebuttal briefs.
See 19 CFR 351.310(d). Parties should confirm by telephone the date,
time, and location of the hearing two days before the scheduled date.
The Department will issue the final results of the administrative
review, which will include the results of its analysis of issues raised
in the briefs, within 120 days of publication of these preliminary
results, in accordance with section 751(a)(3)(A) of the Act, unless the
time limit is extended.
Assessment Rates
Pursuant to 19 CFR 351.212, the Department will determine, and CBP
shall assess, antidumping duties on all appropriate entries of subject
merchandise in accordance with the final results of this review. For
assessment purposes, the Department calculated exporter/importer- (or
customer) -specific assessment rates for merchandise subject to this
review. The Department calculated a per-unit rate for each importer (or
customer) by dividing the total dumping margins for reviewed sales to
that party by the total sales quantity associated with those
transactions. For duty-assessment rates calculated on this basis, the
Department will direct CBP to assess the resulting per-unit rate
against the entered quantity of the subject merchandise. Where an
importer- (or customer) -specific assessment rate is de minimis (i.e.,
less than 0.50 percent), the Department will instruct CBP to assess
that importer's (or customer's) entries of subject merchandise without
regard to antidumping duties. The Department intends to instruct CBP to
liquidate entries containing subject merchandise exported by the PRC-
wide entity at the PRC-wide rate in the final results of this review.
The Department intends to issue appropriate assessment instructions
directly to CBP 15 days after publication of the final results of this
review.
Cash Deposit Requirements
The following cash deposit requirements will be effective for
shipments of subject merchandise from the PRC entered, or withdrawn
from warehouse, for consumption on or after the publication date of the
final results of the review, as provided by sections 751(a)(1) and
(a)(2)(C) of the Act: (1) For all respondents receiving a separate rate
in this review, the cash deposit rate will be that established in the
final results of the review; (2) for previously investigated or
reviewed PRC and non-PRC exporters not listed above that have separate
rates, the cash deposit rate will continue to be the exporter-specific
rate published for the most recent period; (3) for all PRC exporters of
subject merchandise that have not been found to be entitled to a
separate rate, the cash deposit rate will be the PRC-wide rate of 76.72
percent; and (4) for all non-PRC exporters of subject merchandise which
have not received their own rate, the cash deposit rate will be the
rate applicable to the PRC exporters that supplied that non-PRC
exporter. 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
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 this review period. Failure to comply
with this requirement could result in the
[[Page 49900]]
Secretary's presumption that reimbursement of antidumping duties
occurred and the subsequent assessment of double antidumping duties.
The Department is issuing and publishing these preliminary results
of administrative review in accordance with sections 751(a)(1) and
777(i)(1) of the Act, and 19 CFR 351.221(b)(4).
Dated: August 9, 2010.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 2010-20190 Filed 8-13-10; 8:45 am]
BILLING CODE 3510-DS-P