[Federal Register Volume 75, Number 248 (Tuesday, December 28, 2010)]
[Notices]
[Pages 81570-81574]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32680]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-533-824]
Polyethylene Terephthalate Film, Sheet, and Strip From India:
Preliminary Results of Antidumping Duty New Shipper Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce (the Department) is conducting a
semiannual new shipper review (NSR) under the antidumping duty order on
polyethylene terephthalate film, sheet, and strip (PET film) from India
in response to a request from SRF Limited (SRF). The domestic
interested parties for this proceeding are DuPont Teijin Films,
Mitsubishi Polyester Film, Inc., SKC, Inc. and Toray Plastics
(America), Inc. (petitioners).
We preliminarily determine that the U.S. sale of subject
merchandise produced and exported by SRF was bona fide and not sold
below normal value (NV). If these preliminary results are adopted in
our final results, the Department intends to instruct United States
Customs and Border Protection (CBP) to liquidate entries subject to
this review without regard to antidumping duties. Interested parties
are invited to comment on these preliminary results. See the
``Preliminary Results of Review'' section of this notice. The final
results will be issued 90 days after the date of signature of these
preliminary results, unless extended.
DATES: Effective Date: December 28, 2010.
FOR FURTHER INFORMATION CONTACT: Elfi Blum or Toni Page, AD/CVD
Operations, Office 6, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-
0197 or (202) 482-1398, respectively.
SUPPLEMENTARY INFORMATION:
Background
The Department published the antidumping duty order on PET film
from India on July 1, 2002. See Notice of Amended Final Antidumping
Duty Determination of Sales at Less Than Fair Value and Antidumping
Duty Order: Polyethylene Terephthalate Film, Sheet, and Strip from
India, 67 FR 44175 (July 1, 2002). On December 24, 2009, the Department
received a timely request from SRF, in accordance with section
751(a)(2)(B) of the Tariff Act of 1930, as amended (the Act) and 19 CFR
351.214(c)(2), to conduct a semiannual new shipper review under the
antidumping duty order on PET film from India. The Department found the
request for review met all of the requirements for initiation set forth
in
[[Page 81571]]
19 CFR 351.214(b) and initiated the review on March 2, 2010. See
Polyethylene Terephthalate Film, Sheet and Strip from India: Initiation
of Antidumping Duty and Countervailing Duty New Shipper Reviews, 75 FR
10758 (March 9, 2010) (NSR Initiation).\1\
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\1\ As stated in the initiation notice, due to the closure of
the Federal Government in Washington D.C. between February 5 and
February 12, 2010, the Department tolled its deadlines during that
period, thereby extending all deadlines in this segment of the
proceeding by seven days. Therefore, the deadline for the initiation
of this new shipper review was extended by one week, to March 8,
2010. See NSR Initiation, 75 FR at 10758.
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On April 6, 2010, the Department issued the initial questionnaire
to SRF. On May 11, 2010, SRF submitted its section A response. On May
13, 2010, SRF submitted its responses to sections B and C of the
questionnaire. On June 16, August 17, and September 15, 2010, the
Department issued supplemental questionnaires to SRF and to its U.S.
customer. SRF and its U.S. customer (through SRF) submitted responses
to the questionnaires on July 14, August 30, and November 19, 2010,
respectively.
On August 18, 2010, the Department extended the deadline for the
preliminary results to October 22, 2010. See Polyethylene Terephthalate
Film, Sheet and Strip from India: Extension of Time Limit for
Preliminary Results of Antidumping Duty New Shipper Review, 75 FR 52717
(August 27, 2010). On October 18, 2010, the Department decided to
further extend the deadline for the preliminary results to December 16,
2010, and then on December 16, 2010, the Department again extended the
deadline to December 21, 2010. See Polyethylene Terephthalate Film,
Sheet and Strip from India: Extension of Time Limit for Preliminary
Results of Antidumping Duty New Shipper Review, 75 FR 65450 (October
25, 2010); Polyethylene Terephthalate Film, Sheet and Strip from India:
Extension of Time Limit for Preliminary Results of Antidumping Duty New
Shipper Review, (signed on Thursday, December 16, 2010, and not yet
published prior to the signing of the instant notice).
Scope of the Order
The products covered by the antidumping duty order are all gauges
of raw, pretreated, or primed PET film, whether extruded or coextruded.
Excluded are metallized 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 of more than 0.00001
inches thick. Imports of PET film are currently classifiable in the
Harmonized Tariff Schedule of the United States (HTSUS) under item
number 3920.62.00.90. HTSUS subheadings are provided for convenience
and customs purposes. The written description of the scope of the
antidumping duty order is dispositive.
Bona Fides Analysis
Consistent with Department practice, we examined the bona fides of
the new shipper sale at issue. In evaluating whether a sale in a NSR is
commercially reasonable, and therefore bona fide, the Department
considers, inter alia, such factors as: (1) The timing of the sale; (2)
the price and quantity; (3) the expenses arising from the transaction;
(4) whether the goods were resold at a profit; and (5) whether the
transaction was made on an arm's-length basis. See Tianjin Tiancheng
Pharmaceutical Co., Ltd. v. United States, 366 F. Supp. 2d 1246, 1250
(Ct. Int'l Trade 2005) (TTPC). Accordingly, the Department considers a
number of factors in its bona fides analysis, ``all of which may speak
to the commercial realities surrounding an alleged sale of subject
merchandise.'' See Hebei New Donghua Amino Acid Co., Ltd. v. United
States, 374 F. Supp. 2d 1333, 1342 (Ct. Int'l Trade 2005) (New Donghua)
(citing Fresh Garlic From the People's Republic of China: Final Results
of Antidumping Administrative Review and Rescission of New Shipper
Review, 67 FR 11283 (March 13, 2002), and accompanying Issues and
Decision Memorandum (New Shipper Review of Clipper Manufacturing
Ltd.)). In TTPC, the court also affirmed the Department's decision that
``any factor which indicates that the sale under consideration is not
likely to be typical of those which the producer will make in the
future is relevant,'' (TTPC, 366 F. Supp. 2d at 1250), and found that
``the weight given to each factor investigated will depend on the
circumstances surrounding the sale.'' TTPC, 366 F. Supp. 2d at 1263.
Finally, in New Donghua, the Court of International Trade affirmed the
Department's practice of evaluating the circumstances surrounding a NSR
sale, so that a respondent does not unfairly benefit from an atypical
sale and obtain a lower dumping margin than the producer's usual
commercial practice would dictate.
Based on the totality of circumstances, we preliminarily find that
the sale made by SRF during the POR was a bona fide commercial
transaction. The facts that led us to this preliminary conclusion
include the following: (1) Neither the price nor quantity of the sale
were outside normal bounds; (2) neither SRF nor its customer incurred
any extraordinary expenses arising from this transaction; (3) the sale
was made between unaffiliated parties at arm's length; and (4) the
timing of the sale does not indicate that the sale was not bona fide.
Since much of the factual information used in our analysis of the bona
fides of the transaction involves business proprietary information, a
full discussion of the bases for our decision is set forth in the
Memorandum to Thomas Gilgunn, Program Manager, from Toni Page,
International Trade Analyst, regarding Bona Fide Nature of the Sale in
the Antidumping Duty New Shipper Review of Polyethylene Terephthalate
Film, Sheet, and Strip from India: SRF Limited (Bona Fides Memorandum),
dated concurrently with this notice and on file in the Central Records
Unit (CRU), room 7046 of the main Department of Commerce building. We
will continue to examine the bona fides of SRF's sale after the
preliminary results.
Period of Review
The period of review (POR) for this NSR is July 1, 2009, through
December 31, 2009.
Fair Value Comparisons
To determine whether SRF's sale of subject merchandise from India
was made in the United States at less than NV, we compared the export
price (EP) to the NV, as described in the ``U.S. Price'' and ``Normal
Value'' section of this notice in accordance with section 777A(d)(2) of
the Act.
Home Market Viability
In order to determine whether there is 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 five percent or more of the aggregate volume of U.S. sales), we
compared the volume of SRF's home market sales of the foreign like
product to the volume of its U.S. sales of subject merchandise, in
accordance with section 773(a)(1)(B)(ii)(II) of the Act. Based on this
comparison, we determined that SRF's home market was viable during the
POR.
Product Comparisons
Pursuant to section 771(16)(A) of the Act, for purposes of
determining appropriate product comparisons to the U.S. sales, the
Department considers all products, as described in the ``Scope of the
Order'' section of this notice above, that were sold in the comparison
market in the ordinary course of trade. In accordance with sections
771(16)(B) and
[[Page 81572]]
(C) of the Act, where there are no sales of identical merchandise in
the comparison market made in the ordinary course of trade, we compare
U.S. sales to sales of the most similar foreign like product based on
the characteristics listed in sections B and C of our antidumping
questionnaire: Grade, specifications, thickness, dimensions, and
surface treatment. We found that SRF had sales of foreign like product
that were identical in these respects to the merchandise sold in the
United States, and therefore compared the U.S. product with the
identical merchandise sold in the comparison market based on the
characteristics listed above, in that order of priority.
Date of Sale
Regarding date of sale, 19 CFR 351.401(i) states that the
Department will normally use the date of invoice as the date of sale,
unless a different date better reflects the date on which the material
terms of sale are established. In its initial response, SRF reported
invoice date as the date of sale for its home market sales and for its
U.S. sale. Moreover, SRF reported that for both markets, it issues the
invoice on the same date as it ships the merchandise. In its second
supplemental questionnaire response, SRF stated that sometimes
negotiations can continue after the invoice has been issued (and the
goods have been shipped) for certain home market sales. See SRF's
November 19, 2010, second supplemental questionnaire response at 9. In
these circumstances, SRF does not issue a new invoice, rather it
adjusts the invoice price by issuing a credit note. See Id. We have
analyzed the data on the record and preliminarily determine that the
reported invoice dates are the appropriate dates of sale for the U.S.
and home market sales under review.
U.S. Price
We used EP methodology for SRF's U.S. sale, in accordance with
section 772(a) of the Act, because the subject merchandise was sold
directly to the first unaffiliated purchaser in the United States prior
to importation, and constructed export price methodology was not
otherwise warranted based on the facts of record. In accordance with
sections 772(a) and (c) of the Act, we calculated EP using the
delivered duty paid price SRF charged its unaffiliated customer. We
made deductions, where applicable, for movement expenses, including,
domestic inland freight, U.S. inland freight, domestic brokerage and
handling, U.S. brokerage and handling, international freight, marine
insurance, and U.S. Customs duties.
Information about the specific adjustments and our analysis of the
adjustments is business proprietary, and is detailed in the
``Adjustments'' section in the Memorandum to Thomas Gilgunn, Program
Manager, from Toni Page, International Trade Analyst, Analysis
Memorandum for the Preliminary Results of the Antidumping Duty New
Shipper Review of Polyethylene Terephthalate Film, Sheet, and Strip
from India: SRF Limited, dated concurrently with this notice
(Preliminary Analysis Memorandum).
Normal Value
In accordance with section 773(a)(1)(B)(i) of the Act, we have
based NV on the price 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
practicable, at the same level of trade (LOT) as the EP sale. See
``Level of Trade'' section below.
Level of Trade
Pursuant to section 773(a)(1)(B)(i) of the Act, to the extent
practicable, NV is normally the price in the home market that is at the
same level of trade (LOT) as the EP. The NV LOT is that of the
starting-price sale in the comparison market, or when NV is based on
CV, that of the sales from which we derive selling, general and
administrative (SG&A) expenses and profit. For EP, the U.S. LOT is the
level of the starting-price sale, which is usually from exporter to
unaffiliated customer. To determine whether NV sales are at a different
LOT than EP sales, we examine stages in the selling functions along the
chain of distribution between the producer and unaffiliated customer.
If the comparison market sales are at a different LOT, and the
difference affects the price comparability, as manifested in a pattern
of consistent price differences between sales at different levels of
trade in the country in which NV is determined, we make an LOT
adjustment under section 773(a)(7)(A) of the Act and under section
351.410(c) of the Department's regulations. See, e.g., Notice of Final
Determination of Sales at Less Than Fair Value: Certain Cut-to-Length
Carbon Steel Plate from South Africa, 62 FR 61731 (November 19, 1997).
For the U.S. market, SRF reported only one channel of distribution
(from SRF to unaffiliated U.S. trader) for its EP sale while, in the
home market, SRF reported four channels (the four channels are: SRF to
end user, SRF to dealer, SRF to dealer attached customer, and SRF to
warehouse to dealer/dealer-attached customer). See section A
questionnaire response at Exhibit A-5. SRF provided information about
selling functions it performed in its home market for all three of its
customer categories (end users, dealers, and dealer-attached customers)
across the four channels of distribution. SRF reported that certain
selling functions were not performed for all three home market customer
categories. For its home market sales, SRF reported that its channel of
distribution to dealers and dealer-attached customers were most similar
to the channel of distribution to its U.S. sale. See section C
questionnaire response at C-11 and SRF's Second Supplemental
Questionnaire Response at 9.
After analyzing the information on the record with respect to these
selling functions, we preliminarily find that there were sufficient
differences in the selling functions performed for the different
channels of trade to conclude that there is more than one level of
trade in the home market. We examined the information reported by SRF
with respect to its selling functions, freight functions, technical
services/warranty functions, and inventory management functions. We
examined the selling functions and the level of intensity at which SRF
performs those selling functions in the home market channels of
distribution, as described in the company's questionnaire responses.
See section A questionnaire response at A-20 and Exhibit A-5; see also
SRF's November 19, 2010, second supplemental questionnaire response at
8-9. Information about the specific selling functions we examined, the
intensity at which SRF performed them, and our analysis is business
proprietary and is detailed in the ``Level of Trade'' section in the
Preliminary Analysis Memorandum. Based on the facts and our analysis of
SRF's selling functions performed in the channels of distribution, we
preliminarily conclude that SRF's home market sales were made at two
distinct levels of trade: Sales directly from SRF to its end user and
sales from SRF to its dealers and dealer-attached customers. See
``Level of Trade'' section in the Preliminary Analysis Memorandum.
As noted previously, SRF reported that its U.S. sale was made
through one distribution channel, to an unaffiliated trader in the
United States. For the U.S. market, we also examined the information
reported by SRF with respect to the selling functions, the freight
functions, and U.S. Customs functions performed by SRF for its sale to
the unaffiliated U.S. customer. We examined the selling functions and
the
[[Page 81573]]
level of intensity at which SRF performs these selling functions as
described in its questionnaire responses. See section A questionnaire
response at A-19 through A-20 and at Exhibit A-5, section C
questionnaire response at Exhibit C-1, and SRF's November 19, 2010,
second supplemental questionnaire response at 8-9. Information about
the specific selling functions we examined, the intensity at which SRF
performed those selling functions for its U.S. sale (to the
unaffiliated trader) and our analyses is business proprietary. As such,
it is detailed in the ``Level of Trade'' section in the Preliminary
Analysis Memorandum.
Based on our analysis, we preliminarily find that the U.S. sale is
at the same LOT as SRF's home market sales to dealers and dealer-
attached customers (LOTH 2). Since we are able to match the U.S. sale
to home market sales at a comparable LOT, the Department finds that it
is not necessary to make an LOT adjustment. For our complete analysis,
see ``Level of Trade'' section in the Preliminary Analysis Memorandum.
Calculation of Normal Value
We based NV on the starting prices of SRF's sales to unaffiliated
home market customers accounting for billing adjustments where
applicable, pursuant to section 773(a)(1)(A) of the Act. Pursuant to
section 773(a)(6)(B)(ii) of the Act, we made deductions from normal
value for movement expenses (i.e., inland freight, warehousing, and
inland insurance) where appropriate. In accordance with section
773(a)(6)(C)(iii) of the Act and 19 CFR 351.410(e), we made, where
appropriate, circumstance-of-sale adjustments for home market and U.S.
direct selling expenses including imputed credit expenses. We also made
adjustments in accordance with 19 CFR 351.410(e) for indirect selling
expenses incurred on comparison-market or U.S. sales where commissions
were granted on sales in one market but not the other. Specifically,
because commissions were paid only in the home market, we made an
upward adjustment to NV for the lesser of: (1) the amount of commission
paid in the home market; or (2) the amount of the indirect selling
expenses incurred in the home market on U.S. sales. See 19 CFR
351.410(e). In accordance with sections 773(a)(6)(A) and (B) of the
Act, we also deducted home market packing costs and added U.S. packing
costs. See Preliminary Analysis Memorandum.
Currency Conversion
In accordance with section 773A(a) of the Act, we made currency
conversions based on the official exchange rates in effect on the dates
of the U.S. sales as certified by the Federal Reserve Bank of New York.
See also 19 CFR 351.415.
Preliminary Results of New Shipper Review
As a result of our review, we preliminarily determine in accordance
with 19 CFR 351.214(i)(1) that the following percentage margin exists
for SRF for the period July 1, 2009, through December 31, 2009:
------------------------------------------------------------------------
Manufacturer/exporter Margin
------------------------------------------------------------------------
SRF Limited.................................................. 0%
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Assessment Rate
Upon completion of the new shipper review, the Department shall
determine, and CBP shall assess, antidumping duties on all appropriate
entries, in accordance with 19 CFR 351.212(b). The Department intends
to issue assessment instructions for SRF directly to CBP 15 days after
the date of publication of the final results of this new shipper
review.
Pursuant to 19 CFR 351.212(b)(1), we will calculate an importer-
specific assessment rate on the basis of the ratio of the total amount
of antidumping duties calculated for the examined sales and the total
entered value of the examined sales. We will instruct CBP to assess
antidumping duties on all appropriate entries covered by this review if
the importer-specific assessment rate calculated in the final results
of this review is above de minimis (i.e., at or above 0.50 percent).
Pursuant to 19 CFR 351.106(c)(2), we intend to instruct CBP to
liquidate without regard to antidumping duties any entries for which
the assessment rate is zero or de minimis (i.e., less than 0.50
percent). See 19 CFR 351.106(c)(1).
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 new shipper review, as provided by section
751(a)(2)(C) of the Act: (1) The cash deposit rate for subject
merchandise that is both produced and exported by SRF will be the rate
established in the final results of this new shipper review, except no
cash deposit will be required if its weighted-average margin is de
minimis (i.e., less than 0.5 percent); (2) if the exporter is not a
firm covered in this review, but was covered in a previous review or
the original less-than-fair-value (LTFV) investigation, 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 previous review, or the original 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
merchandise; and (4) the cash deposit rate for all other manufacturers
and/or exporters of this merchandise, shall be 5.71 percent, the all-
others rate established in the LTFV investigation. These requirements,
when imposed, shall remain in effect until further notice.
Further, effective upon publication of the final results, we intend
to instruct CBP that importers may no longer post a bond or other
security in lieu of a cash deposit on imports of PET film from India,
manufactured and exported by SRF. These cash deposit requirements, when
imposed, shall remain in effect until further notice.
Verification
In accordance with section 782(i)(3) of the Act, the Department
intends to conduct a sales verification of SRF's responses following
the preliminary results of this review.
Disclosure and Public Hearing
The Department will disclose to parties the calculations performed
in connection with these preliminary results within ten days of the
date of public announcement. See 19 CFR 351.224(b). Unless notified by
the Department, pursuant to 19 CFR 351.309(c), interested parties may
submit cases briefs not later than 30 days after the date of
publication of this notice. Rebuttal briefs, limited to issues raised
in the case briefs, may be filed not later than five days after the
deadline for filing the case briefs. See 19 CFR 351.309(d). Parties who
submit case briefs or rebuttal briefs in this proceeding 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. Additionally,
parties are requested to provide their case briefs and rebuttal briefs
in electronic format (e.g., WordPerfect, Microsoft Word, Adobe Acrobat,
etc.).
Interested parties who wish to request a hearing or to participate
if one is requested must submit a written request to the Assistant
Secretary for Import Administration, Room B-099, within 30 days of the
date of publication of this
[[Page 81574]]
notice. Requests should contain: (1) The party's name, address and
telephone number; (2) the number of participants; and (3) a list of
issues to be discussed. See 19 CFR 351.310(c). Issues raised in the
hearing will be limited to those raised in the case and rebuttal
briefs.
The Department will issue the final results of this review,
including the results of its analysis of issues raised in any written
briefs, within 90 days of signature of these preliminary results,
unless the final results are extended. See section 751(a)(2)(B)(iv) of
the Act.
Notification to Importers
This notice 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 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.
This new shipper review is issued and published in accordance with
sections 751(a)(2)(B)(iv) and 777(i)(1) of the Act, as well as 19 CFR
351.214(i).
Dated: December 21, 2010.
Christian Marsh,
Acting Deputy Assistant Secretary for Import Administration.
[FR Doc. 2010-32680 Filed 12-27-10; 8:45 am]
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