[Federal Register Volume 74, Number 211 (Tuesday, November 3, 2009)]
[Notices]
[Pages 56813-56820]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-26428]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-552-806]
Polyethylene Retail Carrier Bags From the Socialist Republic of
Vietnam: Preliminary Determination of Sales at Less Than Fair Value and
Postponement of Final Determination
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
DATES: Effective Date: November 3, 2009.
SUMMARY: The Department of Commerce (the ``Department'') preliminarily
determines that polyethylene retail carrier bags (``PRCBs'') from the
Socialist Republic of Vietnam (``Vietnam'') are being, or are likely to
be, sold in the United States at less than fair value (``LTFV''), as
provided in section 733 of the Tariff Act of 1930, as amended (the
``Act''). The estimated dumping margins are shown in the Preliminary
Determination Margins section of this notice.
FOR FURTHER INFORMATION CONTACT: Zev Primor or Shawn Higgins, 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-
4114 and (202) 482-0679, respectively.
SUPPLEMENTARY INFORMATION:
Background
On March 31, 2009, the Department received a petition concerning
imports of PRCBs from Indonesia, Taiwan, and Vietnam filed in proper
form by Hilex Poly Co., LLC and Superbag Corporation (``Petitioners'').
See Petition from Petitioners to the Secretary of Commerce, ``Petition
for the Imposition of Antidumping and Countervailing Duties on
Polyethylene Retail Carrier Bags from Indonesia, Taiwan, and the
Socialist Republic of Vietnam'' (March 31, 2009) (``Petition''). The
Department initiated an antidumping duty investigation of PRCBs from
Indonesia, Taiwan, and Vietnam on April 20, 2009. See Polyethylene
Retail Carrier Bags from Indonesia, Taiwan, and the Socialist Republic
of Vietnam: Initiation of Antidumping Duty Investigations, 74 FR 19049
(April 27, 2009) (``Initiation Notice'').
On April 21, 2009, the Department requested quantity and value
(``Q&V'') information from the 65 companies identified in the
Petitioners' revision of a list provided in the Petition as
[[Page 56814]]
potential producers or exporters of PRCBs from Vietnam. See Letter from
Petitioners to the Secretary of Commerce, ``Revised Exhibit II-6/III-2
of the Petition'' (April 16, 2009); see also Letter from Robert
Bolling, Program Manager, AD/CVD Operations, Office 4, to All
Interested Parties, ``Antidumping Duty Investigation of Polyethylene
Retail Carrier Bags from the Socialist Republic of Vietnam: Quantity
and Value Questionnaire'' (April 21, 2009). The Department received
timely responses to its Q&V questionnaire from the following 23
companies: Advance Polybag Co., Ltd. (``API''), Fotai Vietnam
Enterprise Corp. (``Fotai Vietnam''), Kinsplastic Vietnam Ltd. Co.,
Alpha Plastics (Vietnam) Co. Ltd., BITAHACO, Richway Plastics Vietnam
Co., Ltd., Chin Sheng Co., Ltd., K's International Polybags Mfg., Ltd.,
Ampac Packaging Vietnam Ltd., Ontrue Plastics Co., Ltd. (Vietnam),
Green Care Packaging Industrial (Vietnam) Co., Chung Va Century Macao
Commercial Offshore Limited, Creative Pak Industrial Co., Ltd., An Phat
Plastic and Packing Joint Stock Co., VN Plastic Industries Co., Ltd.,
VINAPACKINK Co., Ltd., Kong Wai Polybag Printing Company, Loc Cuong
Trading Producing Company, Genius Development Ltd., Hanoi 27-7 Packing
Company Limited (``HAPACK''), J.K.C. Vina Co., Ltd., Alta Company, and
RKW Lotus Limited.\1\ Of the 65 Q&V questionnaires the Department sent
to potential exporters/manufacturers identified in the Petition, the
Department received 19 timely responses and two untimely responses.\2\
The record indicates that 55 of the 65 questionnaires sent by the
Department were received by potential exporters/manufacturers.\3\
Therefore, 34 companies to which the Department sent the Q&V
questionnaire received the questionnaire but did not respond.
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\1\ Because VINAPACKINK Co., Ltd., VN Plastic Industries Co.,
Ltd., Kong Wai Polybag Printing Company, and Genius Development Ltd.
were not identified in the Petition as potential producers or
exporters of PRCBs from Vietnam, the Department did not send these
companies Q&V questionnaires. The Department made the Q&V
questionnaire publicly available on its Web site for producers and
exporters of PRCB from Vietnam that were not named in teh Petition.
\2\ Tan Hoa Loi and Nam hai Son Export Import JSC reported via
mail and e-mal, respectively, that they did not ship PRCBs to the US
during the period of investigation (``POI''). these responses were
incomplete and not timely.
\3\ Federal Express and DHL were unable to deliver the Q&V
questionnaire to the addresses of 10 exporters/manufacturers
provided by Petitioners.
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On May 22, 2009, the International Trade Commission (``ITC'')
preliminarily determined that there is a reasonable indication that an
industry in the United States is materially injured by reason of
imports of PRCBs from Indonesia, Taiwan, and Vietnam. See Polyethylene
Retail Carrier Bags from Indonesia, Taiwan, and Vietnam;
Determinations, Investigation Nos. 701-TA-462 and 731-TA-1156-1158
(Preliminary), 74 FR 25771 (May 29, 2009).
On May 27, 2009, the Department selected API and Fotai Vietnam as
mandatory respondents. See Memorandum from Zev Primor, Senior
International Trade Analyst, AD/CVD Operations, Office 4, to John M.
Andersen, Acting Deputy Assistant Secretary for Antidumping and
Countervailing Duty Operations, ``Selection of Respondents in the
Antidumping Investigation of Polyethylene Retail Carrier Bags from the
Socialist Republic of Vietnam'' (May 27, 2009) (``Respondent Selection
Memorandum''). On May 28, 2009, the Department issued antidumping
questionnaires to the mandatory respondents (i.e., API and Fotai
Vietnam). API and Fotai Vietnam submitted timely responses to section A
of the Department's antidumping questionnaire on June 25, 2009. Timely
responses to sections C and D of the Department's antidumping
questionnaire were submitted by API and Fotai Vietnam on July 15, 2009,
and July 20, 2009, respectively.
In June and July 2009, the Department received separate rate
applications from API, Fotai Vietnam, Alpha Plastics (Vietnam) Co.,
Ltd., Alta Company, Ampac Packaging Vietnam Ltd., BITAHACO, Chin Sheng
Co., Ltd., Chung Va Century Macao Commercial Offshore Limited, HAPACK,
Kong Wai Polybag Printing Company, Kinsplastic Vietnam Ltd. Co., Loc
Cuong Trading Producing Company, Ontrue Plastics Co., Ltd. (Vietnam),
Richway Plastics Vietnam Co., Ltd., RKW Lotus Limited, VINAPACKINK Co.,
Ltd., K's International Polybags Mfg., Ltd., and VN Plastic Industries
Co. Ltd.
The Department issued supplemental questionnaires to, and between
July 2009 and September 2009, received responses from API, Fotai
Vietnam, Alpha Plastics (Vietnam) Co., Ltd., Alta Company, Ampac
Packaging Vietnam Ltd., BITAHACO, Chin Sheng Co., Ltd., Chung Va
Century Macao Commercial Offshore Limited, HAPACK, Kong Wai Polybag
Printing Company, Kinsplastic Vietnam Ltd. Co., Loc Cuong Trading
Producing Company, Ontrue Plastics Co., Ltd. (Vietnam), Richway
Plastics Vietnam Co., Ltd., RKW Lotus Limited, VINAPACKINK Co., Ltd.,
K's International Polybags Mfg., Ltd., and VN Plastic Industries Co.
Ltd. From July 2009 through September 2009, Petitioners submitted
comments to the Department regarding API and Fotai Vietnam's responses
to sections A, C, and D of the antidumping questionnaire.
On June 9, 2009, the Department released a letter to interested
parties which listed potential surrogate countries and invited
interested parties to comment on surrogate country and surrogate value
(``SV'') selection. See Letter from Robert Bolling, Program Manager,
AD/CVD Operations, Office 4, to All Interested Parties, ``Antidumping
Duty Investigation of Polyethylene Retail Carrier Bags from the
Socialist Republic of Vietnam'' (June 9, 2009). During June 2009 and
July 2009, Petitioners,\4\ API,\5\ and Fotai Vietnam \6\ submitted
comments on the appropriate surrogate country and SVs. On August 26,
2009, after evaluating the interested parties' comments, the Department
selected India as the surrogate country for this investigation.\7\
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\4\ See Letter from Petitioners to the Secretary of Commerce,
``Polyethylene Retail Carrier Bags From Vietnam: Petitioners'
Rebuttal Surrogate Value Submission'' (July 23, 2009); Letter from
Petitioners to the Secretary of Commerce, ``Polyethylene Retail
Carrier Bags From Vietnam: Initial Surrogate Value Submission''
(July 13, 2009); Letter from Petitioners to the Secretary of
Commerce, ``Polyethylene Retail Carrier Bags From Vietnam:
Petitioners' Rebuttal Comments On Surrogate Country Selection''
(July 7, 2009); Letter from Petitioners to the Secretary of
Commerce, ``Polyethylene Retail Carrier Bags From Vietnam:
Petitioners' Comments On Surrogate Country Selection'' (June 30,
2009);
\5\ See Letter from API to the Secretary of Commerce,
``Antidumping Duty Investigation Involving Polyethylene Retail
Carrier Bags from Vietnam'' (July 29, 2009); Letter from API to the
Secretary of Commerce, ``Antidumping Duty Investigation Involving
Polyethylene Retail Carrier Bags from Vietnam'' (July 13, 2009);
Letter from API to the Secretary of Commerce, ``Antidumping Duty
Investigation Involving Polyethylene Retail Carrier Bags from
Vietnam--Surrogate Country Comments'' (June 30, 2009).
\6\ See Letter from Fotai Vietnam to the Secretary of Commerce,
``Polyethylene Retail Carrier Bags from the Socialist Republic of
Vietnam'' (July 13, 2009); Letter from Fotai Vietnam to the
Secretary of Commerce, ``Polyethylene Retail Carrier Bags from the
Socialist Republic of Vietnam'' (June 30, 2009).
\7\ See Memorandum from Shawn Higgins, International Trade
Compliance Analyst, AD/CVD Operations, Office 4, to Abdelali
Elouaradia, Office Director, AD/CVD Operations, Office 4,
``Antidumping Duty Investigation of Polyethylene Retail Carrier Bags
from the Socialist Republic of Vietnam: Selection of a Surrogate
Country'' (August 26, 2009).
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On August 7, 2009, Petitioners submitted allegations of targeted
dumping with respect to API and Fotai Vietnam. API and Fotai Vietnam
responded to Petitioners' targeted dumping allegations on September 2,
2009, and August 28, 2009, respectively.
On August 13, 2009, Petitioners made a request for a 50-day
postponement of the preliminary determination. On August 21, 2009, the
Department extended this preliminary
[[Page 56815]]
determination by fifty days. See Postponement of Preliminary
Determination of Antidumping Duty Investigations: Polyethylene Retail
Carrier Bags from Indonesia, Taiwan, and the Socialist Republic of
Vietnam, 74 FR 42229 (August 21, 2009).
On September 23, 2009, Fotai Vietnam notified the Department that
it would no longer participate in this investigation. See Letter from
Fotai Vietnam to the Secretary of Commerce, ``Polyethylene Retail
Carrier Bags from the Socialist Republic of Vietnam'' (September 23,
2009) (``Fotai Vietnam Withdrawal Letter''). Similarly, on October 21,
2009, API notified the Department that it would no longer participate
in this investigation. See Letter from API to the Secretary of
Commerce, ``Antidumping Duty Investigation Involving Polyethylene
Retail Carrier Bags from the Socialist Republic of Vietnam'' (October
21, 2009) (``API Withdrawal Letter'').
On October 19, 2009, Petitioners requested that the Department
revise the estimated dumping margins stated in the Petition and
calculated for purposes of initiation.\8\ However, because Petitioners'
October 19, 2009, submission was received by the Department just eight
days prior to the signature date of the preliminary determination, the
Department did not have sufficient time to analyze its substance.
Therefore, the Department will evaluate these comments in the final
determination.
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\8\ See Letter from Petitioners to the Secretary of Commerce,
``Polyethylene Retail Carrier Bags From Vietnam: Petitioners'
Comments Concerning Updates To And Further Corroboration Of The
Estimated Margin Calculations Used By The Department For Initiation
Of This Investigation'' (October 19, 2009).
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Period of Investigation
The POI is July 1, 2008, through December 31, 2008. This period
corresponds to the two most recent fiscal quarters prior to the month
of the filing of the Petition, (i.e., March 2009). See 19 CFR
351.204(b)(1).
Postponement of Final Determination
Pursuant to section 735(a)(2) of the Act, on September 22, 2009,
API requested that, in the event of an affirmative preliminary
determination in this investigation, the Department postpone its final
determination.\9\ On September 28, 2009, API agreed that the Department
may extend the application of the provisional measures prescribed under
19 CFR 351.210(e)(2) from a 4-month period to a 6-month period. In
accordance with section 733(d) of the Act and 19 CFR 351.210(b), the
Department is granting the request and is postponing the final
determination until no later than 135 days after the publication of
this notice in the Federal Register because: (1) This preliminary
determination is affirmative, (2) the requesting exporter accounts for
a significant proportion of exports of the subject merchandise, and (3)
no compelling reasons for denial exist. Suspension of liquidation will
be extended accordingly.
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\9\ On September 17, 2009, Petitioners requested that, in the
event of a negative preliminary determination in this investigation,
the Department postpone its final determination.
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Scope of the Investigation
The merchandise subject to these investigations is polyethylene
retail carrier bags, which also 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 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 these investigations 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,
trash-can liners.
Imports of merchandise included within the scope of these
investigations are currently classifiable under statistical category
3923.21.0085 of the Harmonized Tariff Schedule of the United States
(``HTSUS''). This subheading may also cover products that are outside
the scope of these investigations. Furthermore, although the HTSUS
subheading is provided for convenience and customs purposes, the
written description of the scope of these investigations is
dispositive.
Scope Comments
As explained in the preamble to the Department's regulations, the
Department sets aside a period of time in its Initiation Notice for
parties to raise issues regarding product coverage, and encourages all
parties to submit comments within 20 calendar days of publication of
that notice. See Antidumping Duties; Countervailing Duties, 62 FR
27296, 27323 (May 19, 1997) and Initiation Notice. The Department
received no comments regarding the scope of this investigation.
Non-Market Economy Treatment
The Department considers Vietnam to be a non-market economy
(``NME'') country. In accordance with section 771(18)(C)(i) of the Act,
any determination that a country is an NME country shall remain in
effect until revoked by the administering authority. See Certain Frozen
Fish Fillets From the Socialist Republic of Vietnam: Notice of
Preliminary Results of the New Shipper Review and Fourth Antidumping
Duty Administrative Review and Partial Rescission of the Fourth
Administrative Review, 73 FR 52015 (September 8, 2008), unchanged in
Certain Frozen Fish Fillets From the Socialist Republic of Vietnam:
Final Results of the Antidumping Duty Administrative Review and New
Shipper Reviews, 74 FR 11349 (March 17, 2009). The Department has not
revoked Vietnam's status as an NME country. Therefore, in this
preliminary determination, the Department has continued to treat
Vietnam as an NME country and applied its current NME methodology.
Separate Rates
In the Initiation Notice, the Department notified parties of the
application process by which exporters and producers may obtain
separate rate status in NME investigations. See Initiation Notice, 74
FR at 19054-55. The process requires exporters and producers to submit
a separate rate status application.\10\ However, the
[[Page 56816]]
standard for separate rate eligibility has not changed.
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\10\ See Policy Bulletin 05.1: Separate-Rate Practice and
Application of Combination Rates in Antidumping Investigations
involving Non-Market Economy Countries, (April 5, 2005), at 6,
available at http://ia.ita.doc.gov/policy/bull05-1.pdf. (``Policy
Bulletin 05.1''). Policy Bulletin 05.1 states, in relevant part,
``While continuing the practice of assigning separate rates only to
exporters, all separate rates that the Department will now assign in
its NME investigations will be specific to those producers that
supplied the exporter during the period of investigation. Note,
however, that one rate is calculated for the exporter and all of the
producers which supplied subject merchandise to it during the period
of investigation. This practice applied both to mandatory
respondents receiving an individually calculated separate rate as
well as the pool of non-investigated firms receiving the weighted-
average of the individually calculated rates. This practice is
referred to as the application of ``combination rates'' because such
rates apply to specific combinations of exporters and one or more
producers. The cash-deposit rate assigned to an exporter will apply
only to merchandise both exported by the firm in question and
produced by a firm that supplied the exporter during the period of
investigation.''
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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 arising from
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 (``ME''), then a
separate rate analysis is not necessary to determine whether it is
independent from government control.
Separate Rate Recipients
1. Wholly Foreign-Owned
Nine separate rate applicants in this investigation (``Foreign-
Owned SR Applicants''), provided evidence that they are wholly owned by
individuals or companies located in MEs in their separate rate
applications. Therefore, because they are wholly foreign-owned and the
Department has no evidence indicating that they are under the control
of the government of Vietnam, a separate rates analysis is not
necessary to determine whether these companies are independent from
government control. See Notice of Final Determination of Sales at Less
Than Fair Value: Creatine Monohydrate from the People's Republic of
China, 64 FR 71104 (December 20, 1999) (determining that the respondent
was wholly foreign-owned, and thus, qualified for a separate rate).
Accordingly, the Department has preliminarily granted a separate rate
to these Foreign-Owned SR Applicants. See Preliminary Determination
Margins section below for companies marked with a ``[caret]''
designating these companies as foreign-owned SR recipients.
2. Joint Ventures Between Vietnamese and Foreign Companies or Wholly
Vietnamese-Owned Companies
Five of the separate rate applicants in this investigation are
either joint ventures between Vietnamese and foreign companies or are
wholly Vietnamese-owned companies (collectively, ``Vietnamese SR
Applicants''). The Department has analyzed whether each Vietnamese SR
Applicant has demonstrated the absence of de jure and de facto
governmental control over its respective export activities.
a. 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 license; (2) legislative
enactments decentralizing control of companies; and (3) other formal
measures by the government decentralizing control of companies. See
Sparklers, 56 FR at 20589.
The evidence provided by the five Vietnamese SR Applicants supports
a preliminary finding of de jure absence of governmental control based
on the following: (1) An absence of restrictive stipulations associated
with the individual exporters' business and export licenses; (2) the
existence of applicable legislative enactments decentralizing control
of Vietnamese companies; and (3) the implementation of formal measures
by the government decentralizing control of Vietnamese companies.
b. Absence of De Facto Control
Typically, the Department 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. 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,
22545 (May 8, 1995). 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.
The evidence provided by the five Vietnamese SR Applicants supports
a preliminary finding of de facto absence of governmental control 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)
maintain autonomy from the government in making decisions regarding the
selection of management; and (4) retain the proceeds of their
respective export sales and make independent decisions regarding
disposition of profits or financing of losses.
In all, the evidence placed on the record of this investigation by
the five Vietnamese SR Applicants demonstrates an absence of de jure
and de facto government control in accordance with the criteria
identified in Sparklers and Silicon Carbide. Accordingly, the
Department has preliminarily granted a separate rate to the Vietnamese
SR Applicants. See Preliminary Determination Margins section below for
companies marked with an ``*'' designating these companies as
Vietnamese SR recipients.
3. Wholly State-Owned Exporters/Manufacturers and Exporters/
Manufacturers Whose Stock Is Partially Owned by a Government State
Asset Management Company
Two of the separate rate applicants in this investigation are
either wholly state-owned or are exporters/manufacturers whose stock is
partially owned by a government state asset management company
(collectively, State-Owned SR Applicants). According to HAPACK's
Separate Rate Application, HAPACK is a state-owned enterprise, owned by
the Hanoi People's Committee. See HAPACK's July 2, 2009, Separate Rate
Application at 10. According to Alta Company's Separate Rate
Application, Alta Company is partially owned by a state-owned
[[Page 56817]]
enterprise. See Alta Company's July 2, 2009, Separate Rate Application
at 11. Absent evidence of de facto control over export activities,
however, government ownership alone does not warrant denying a company
a separate rate. See Lightweight Thermal Paper From the People's
Republic of China: Final Determination of Sales at Less Than Fair
Value, 73 FR 57329 (October 2, 2008) and the accompanying Issues and
Decisions Memorandum at Comment 7.
The Department preliminarily determines that the evidence placed on
the record of this investigation by HAPACK and Alta Company
demonstrates an absence of de facto government control of exports of
the merchandise under investigation, in accordance with the criteria
identified in Sparklers and Silicon Carbide. HAPACK and Alta Company
both certified that their export prices are not set by, subject to the
approval of, or in any way controlled by a government entity at any
level and that they have independent authority to negotiate and sign
export contracts, by providing price negotiation documents for their
first U.S. sale. See, e.g., HAPACK's July 2, 2009, Separate Rate
Application and September 28, 2009, Separate Rate Application
Supplemental Questionnaire Response; see also Alta Company's July 2,
2009, Separate Rate Application. HAPACK and Alta Company also stated
that they have the right to select their own management and to decide
how profits will be distributed. See HAPACK's July 2, 2009, Separate
Rate Application and September 28, 2009, Separate Rate Application
Supplemental Questionnaire Response; see also Alta Company's July 2,
2009, Separate Rate Application. Thus, the Department preliminarily
determines that there is an absence of both de jure and de facto
government control with respect to both HAPACK and Alta Company.
Accordingly, the Department has preliminarily granted a separate rate
to the State-Owned SR Applicants. See Preliminary Determination Margins
section below for companies marked with an ``o'' designating these
companies as state-owned SR recipients.
Companies Not Receiving a Separate Rate
In the Initiation Notice, the Department requested that all
companies wishing to qualify for separate rate status in this
investigation submit a separate rate status application. See Initiation
Notice. The following five exporters submitted a timely response to the
Department's Q&V questionnaire but did not provide a separate rate
application: (1) Green Care Packaging Industrial (Vietnam) Co.; (2)
Creative Pak Industrial Co., Ltd.; (3) An Phat Plastic and Packing
Joint Stock Co.; (4) Genius Development Ltd.; and (5) J.K.C. Vina Co.,
Ltd., and therefore have not demonstrated their eligibility for
separate rate status in this investigation. As a result, the Department
is treating these Vietnamese exporters as part of the Vietnam-wide
entity.
Margins for Separate Rate Recipients
Normally the separate rate is determined based on the estimated
weighted-average dumping margins established for exporters and
producers individually investigated, excluding de minimis margins or
margins based entirely on adverse facts available (``AFA''). See
section 735(c)(5)(A) of the Act. If, however, the estimated weighted-
average margins for all individually investigated respondents are de
minimis or based entirely on AFA, the Department may use any reasonable
method. See section 735(c)(5)(B) of the Act. In this proceeding,
because the rate for all individually investigated respondents is based
on AFA, we have relied on information from the Petition to determine a
rate to be applied to the respondents that have demonstrated
entitlement to a separate rate. See, e.g., Uncovered Innerspring Units
From the People's Republic of China: Final Determination of Sales at
Less Than Fair Value, 73 FR 79443, 79445 (December 29, 2008).
Specifically, we have assigned a simple average of the margins
contained in the Petition, as adjusted by the Department for purposes
of initiation, i.e., 52.30 percent, as the separate rate for the
preliminary determination. Id.; see also Preliminary Determination of
Sales at Less Than Fair Value: Raw Flexible Magnets from the People's
Republic of China, 73 FR 22327, 22329-30 (April 25, 2008), unchanged in
Final Determination of Sales at Less Than Fair Value: Raw Flexible
Magnets from the People's Republic of China, 73 FR 39669, 39671 (July
10, 2008). Entities receiving this rate are identified by name in the
Preliminary Determination Margins section of this notice.
Use of Facts Available and Adverse Facts Available
Section 776(a) of the Act provides that the Department shall apply
``facts otherwise available'' if (1) necessary information is not on
the record, or (2) an interested party or any other person (A)
withholds information that has been requested, (B) fails to provide
information within the deadlines established, or in the form and manner
requested by the Department, subject to subsections (c)(1) and (e) of
section 782 of the Act, (C) significantly impedes a proceeding, or (D)
provides information that cannot be verified as provided by section
782(i) of the Act.
Section 776(b) of the Act further provides that the Department may
use an adverse inference in applying the facts otherwise available when
a party has failed to cooperate by not acting to the best of its
ability to comply with a request for information. Such an adverse
inference may include reliance on information derived from the
Petition, the final determination, a previous administrative review, or
other information placed on the record.
Vietnam-Wide Entity
1. Non-Responsive Companies
On April 21, 2009, the Department requested Q&V information from
the 65 companies identified in the Petitioners' revision of a list
provided in the Petition as potential producers or exporters of PRCBs
from Vietnam. Additionally, the Department's Initiation Notice informed
these companies of the requirements to respond to both the Department's
Q&V questionnaire and the separate rate application in order to receive
consideration for separate rate status. However, not all exporters/
manufacturers responded to the Department's request for Q&V
information.\11\ Furthermore, not all exporters/manufacturers that
submitted Q&V information also submitted a separate rate
application.\12\ Therefore, the Department preliminarily determines
that there were exports of merchandise under review from Vietnam
exporters/manufacturers that did not respond to the Department's Q&V
questionnaire, and/or subsequently did not demonstrate their
eligibility for separate rate status. As a result, the Department is
treating these Vietnamese exporters/manufacturers (``non-responsive
companies'') as part of the Vietnam-wide entity.
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\11\ As stated in the Background section above, of the 65 Q&V
questionnaires the Department sent to potential exporters identified
in the Petition, the Department received 19 timely responses. The
record indicates that 55 of the 65 questionnaires sent by the
Department were received. See Respondent Selection Memorandum and
Background section above.
\12\ As stated in the Separate Rates section above, five
exporters submitted a timely response to the Department's Q&V
questionnaire but did not provide a separate rate application.
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2. Fotai Vietnam and API
As stated above, both Fotai Vietnam and API informed the
Department, on
[[Page 56818]]
September 23, 2009, and October 21, 2009, respectively, that they would
no longer participate in the instant investigation. Further, Fotai
Vietnam and API requested that the Department: (1) Remove all business
proprietary information (``BPI'') submitted to the record of this
investigation and (2) instruct all parties on the administrative
protective order (``APO'') service list to certify the destruction of
any materials served by Fotai Vietnam or API under the APO. See Fotai
Vietnam Withdrawal Letter and API Withdrawal Letter. Additionally, API
also requested that the Department remove its public information from
the record. See API Withdrawal Letter. The Department, however,
following its practice, retained public copies of submissions provided
on behalf of API and Fotai Vietnam as part of the public record in this
proceeding.\13\ Because both Fotai Vietnam and API have removed all of
their BPI submitted to the record of this investigation, including
their separate rate applications, Fotai Vietnam and API have failed to
demonstrate that they operate free of government control and that they
are entitled to a separate rate. Therefore, the Department
preliminarily finds that Fotai Vietnam and API are part of the Vietnam-
wide entity.
---------------------------------------------------------------------------
\13\ See Letter from Robert Bolling, Program Manager, AD/CVD
Operations, Office 4, to API, ``Antidumping Duty Investigation of
Polyethylene Retail Carrier Bags from the Socialist Republic of
Vietnam: Removal of Advance Polybag Company's Business Proprietary
Information from the Record'' (October 27, 2009). See also, e.g.,
Letter from Richard Weible, Office Director, AD/CVD Operations,
Office 7, to G J Steel, ``Administrative Review of Certain Hot-
Rolled Carbon Steel Flat Products from Thailand'' (April, 8, 2009).
---------------------------------------------------------------------------
Application of Total Adverse Facts Available
As noted above, the Department has determined that Fotai Vietnam,
API, and the non-responsive companies are part of the Vietnam-wide
entity. Pursuant to section 776(a) of the Act, the Department further
finds that the Vietnam-wide entity failed to respond to the
Department's questionnaires, withheld required information, and/or
submitted information that cannot be verified, thus significantly
impeding the proceeding. See Notice of Preliminary Determination of
Sales at Less Than Fair Value, Affirmative Preliminary Determination of
Critical Circumstances and Postponement of Final Determination: Certain
Frozen Fish Fillets From the Socialist Republic of Vietnam, 68 FR 4986,
4991 (January 31, 2003), unchanged in Notice of Final Antidumping Duty
Determination of Sales at Less Than Fair Value and Affirmative Critical
Circumstances: Certain Frozen Fish Fillets from the Socialist Republic
of Vietnam, 68 FR 37116 (June 23, 2003). Accordingly, the Department
has preliminarily determined to base the Vietnam-wide entity's margin
on facts otherwise available. See section 776(a) of the Act. Further,
because the Vietnam-wide entity failed to cooperate by not acting to
the best of its ability to comply with the Department's request for
information, the Department preliminarily determines that, when
selecting from among the facts otherwise available, an adverse
inference is warranted for the Vietnam-wide entity pursuant to section
776(b) of the Act.
Selection of the Adverse Facts Available Rate
In deciding which facts to use as AFA, section 776(b) of the Act
and 19 CFR 351.308(c)(1) provide that the Department may rely on
information derived from (1) the Petition, (2) a final determination in
the investigation, (3) any previous review or determination, or (4) any
information placed on the record. In selecting a rate for AFA, the
Department selects a rate that is sufficiently adverse ``as to
effectuate the purpose of the facts available rule to induce
respondents to provide the Department with complete and accurate
information in a timely manner.'' See Notice of Final Determination of
Sales at Less than Fair Value: Static Random Access Memory
Semiconductors From Taiwan, 63 FR 8909, 8932 (February 23, 1998).
Further, it is the Department's practice to select a rate that ensures
``that the party does not obtain a more favorable result by failing to
cooperate than if it had cooperated fully.'' See Brake Rotors From the
People's Republic of China: Final Results and Partial Rescission of the
Seventh Administrative Review; Final Results of the Eleventh New
Shipper Review, 70 FR 69937, 69939 (November 18, 2005).
It is the Department's practice to select, as AFA, the higher of
the (a) highest margin alleged in the Petition, or (b) the highest
calculated rate of any respondent in the investigation. See Final
Determination of Sales at Less Than Fair Value: Certain Cold-Rolled
Carbon Quality Steel Products from the People's Republic of China, 65
FR 34660 (May 31, 2000) and accompanying Issues and Decision
Memorandum, at ``Facts Available.'' Therefore, as AFA, the Department
has preliminarily assigned to the Vietnam-wide entity the highest
dumping margin alleged in the Petition, as adjusted by the Department
for initiation, which is 76.11 percent.
The dumping margin for the Vietnam-wide entity applies to all
entries of the merchandise under investigation except for entries of
subject merchandise from the exporter/manufacturer combinations listed
in the chart in the Preliminary Determination Margins section below.
Corroboration of Secondary Information
Section 776(c) of the Act provides that, when the Department relies
on secondary information rather than on information obtained in the
course of an investigation or review, it shall, to the extent
practicable, corroborate that information from independent sources that
are reasonably at its disposal. Secondary information is defined as
``{i{time} nformation derived from the petition that gave rise to the
investigation or review, the final determination concerning the subject
merchandise, or any previous review under section 751 concerning the
subject merchandise.'' See Statement of Administrative Action,
accompanying the Uruguay Round Agreements Act (``SAA''), H.R. Doc. No.
103-316, Vol. 1 (1994) at 870. Corroboration means that the Department
will satisfy itself that the secondary information to be used has
probative value. Id. To corroborate secondary information, the
Department will, to the extent practicable, examine the reliability and
relevance of the information to be used. See Tapered Roller Bearings
and Parts Thereof, Finished and Unfinished, from Japan, and Tapered
Roller Bearings Four Inches or Less in Outside Diameter, and Components
Thereof, from Japan; Preliminary Results of Antidumping Duty
Administrative Reviews and Partial Termination of Administrative
Reviews, 61 FR 57391, 57392 (November 6, 1996) (unchanged in the final
determination) Tapered Roller Bearings and Parts Thereof, Finished and
Unfinished, from Japan, and Tapered Roller Bearings Four Inches or Less
in Outside Diameter, and Components Thereof, from Japan; Final Results
of Antidumping Duty Administrative Reviews and Termination in Part, 62
FR 11825 (March 13, 1997). Independent sources used to corroborate such
evidence may include, for example, published price lists, official
import statistics and customs data, and information obtained from
interested parties during the particular investigation. See Notice of
Preliminary Determination of Sales at Less Than Fair Value: High and
Ultra-High Voltage Ceramic Station Post Insulators from Japan, 68 FR
35627 (June 16, 2003) (unchanged in final determination) Notice of
Final Determination of Sales at Less Than Fair Value: High and Ultra
[[Page 56819]]
High Voltage Ceramic Station Post Insulators from Japan, 68 FR 62560
(November 5, 2003); Notice of Final Determination of Sales at Less Than
Fair Value: Live Swine From Canada, 70 FR 12181, 12183-84 (March 11,
2005); SAA at 870.
Because there are no mandatory respondents, to corroborate the
28.49 and 76.11 percent dumping margins, which were calculated for
purposes of initiation and used to assign dumping margins to the
companies receiving a separate rate and to the Vietnam-wide entity, we
revisited our pre-initiation analysis of the adequacy and accuracy of
the information in the Petition. See ``Polyethylene Retail Carrier Bags
from the Socialist Republic of Vietnam: AD Investigation Initiation
Checklist'' (April 20, 2009). We examined evidence supporting the
calculations in the Petition and the supplemental information provided
by Petitioners prior to initiation to determine the probative value of
the margins alleged in the Petition. During our pre-initiation
analysis, we examined the information used as the basis of export price
(``EP'') and normal value (``NV'') in the Petition, and the
calculations used to derive the alleged margins. Also during our pre-
initiation analysis, we examined information from various independent
sources provided either in the Petition or, based on our requests, in
supplements to the Petition, which corroborated key elements of the EP
and NV calculations. Id. We received no comments as to the relevance or
probative value of this information. Accordingly, the Department finds
that the rates derived from the Petition and used for purposes of
initiation have probative value for the purpose of being assigned to
the companies receiving a separate rate and to the Vietnam-wide entity.
Combination Rates
In the Initiation Notice, the Department stated that it would
calculate combination rates for respondents that are eligible for a
separate rate in this investigation. See Initiation Notice. This change
in practice is described in Policy Bulletin 05.1, which states:
{w{time} hile continuing the practice of assigning separate
rates only to exporters, all separate rates that the Department will
now assign in its NME investigations will be specific to those
producers that supplied the exporter during the period of
investigation. Note, however, that one rate is calculated for the
exporter and all of the producers which supplied subject merchandise
to it during the period of investigation. This practice applies both
to mandatory respondents receiving an individually calculated
separate rate as well as the pool of non-investigated firms
receiving the weighted-average of the individually calculated rates.
This practice is referred to as the application of ``combination
rates'' because such rates apply to specific combinations of
exporters and one or more producers. The cash-deposit rate assigned
to an exporter will apply only to merchandise both exported by the
firm in question and produced by a firm that supplied the exporter
during the period of investigation.
Preliminary Determination Margins
The Department preliminarily determines that the following dumping
margins exist for the period July 1, 2008, through December 31,
2008:\14\
---------------------------------------------------------------------------
\14\ As stated above, ``[supcaret]'' designates companies as
foreign-owned SR recipients, ``*'' designates companies as
Vietnamese SR recipients, and ``[ordm]'' designates companies as
state-owned SR recipients.
\15\ API, Fotai Vietnam, Green Care Packaging Industrial
(Vietnam) Co., Creative Pak Industrial Co., Ltd., An Phat Plastic
and Packing Joint Stock Co., Genius Development Ltd., and J.K.C.
Vina Co., Ltd. are all part of the Vietnam-wide entity.
------------------------------------------------------------------------
Antidumping
Manufacturer Exporter duty percent
margin
------------------------------------------------------------------------
Alpha Plastics (Vietnam) Co., Alpha Plastics 52.30
Ltd. [supcaret]. (Vietnam) Co., Ltd.
[supcaret].
Alta Company [deg]............. Alta Company [deg]..... 52.30
Ampac Packaging Vietnam Ltd. Ampac Packaging Vietnam 52.30
[supcaret]. Ltd. [supcaret].
BITAHACO *..................... BITAHACO *............. 52.30
Chin Sheng Co., Ltd. *......... Chin Sheng Co., Ltd. *. 52.30
Chung Va (Vietnam) Plastic Chung Va Century Macao 52.30
Packaging Co., Ltd. [supcaret]. Commercial Offshore
Limited [supcaret].
Hanoi 27-7 Packaging Company Hanoi 27-7 Packaging 52.30
Limited, aka Hanoi 27-7 Company Limited, aka
Packing Company Limited, aka Hanoi 27-7 Packing
HAPACK Co. Ltd, aka HAPACK Company Limited, aka
[ordm]. HAPACK Co. Ltd, aka
HAPACK [deg].
Hoi Hung Company Limited Kong Wai Polybag 52.30
[supcaret]. Printing Company
[supcaret].
Kinsplastic Vietnam Ltd. Co. Kinsplastic Vietnam 52.30
[supcaret]. Ltd. Co. [supcaret].
Loc Cuong Trading Producing Loc Cuong Trading 52.30
Company Limited, aka Loc Cuong Producing Company
Trading Producing Company, aka Limited, aka Loc Cuong
Loc Cuong Trading Producing Trading Producing
Co. Ltd. * Company, aka Loc Cuong
Trading Producing Co.
Ltd. *
Ontrue Plastics Co., Ltd. Ontrue Plastics Co., 52.30
(Vietnam) [supcaret]. Ltd. (Vietnam)
[supcaret].
Richway Plastics Vietnam Co., Richway Plastics 52.30
Ltd. [supcaret]. Vietnam Co., Ltd.
[supcaret].
RKW Lotus Limited Co., Ltd., RKW Lotus Limited Co., 52.30
aka RKW Lotus Limited, aka RKW Ltd., aka RKW Lotus
Lotus Ltd. [supcaret] Limited, aka RKW Lotus
Ltd. [supcaret]
VINAPACKINK Co., Ltd. *........ VINAPACKINK Co., Ltd. * 52.30
VN K's International Polybags K's International 52.30
Joint Stock Company *. Polybags MFG Ltd *.
VN Plastic Industries Co. Ltd. VN Plastic Industries 52.30
[supcaret] Co. Ltd [supcaret].
Vietnam-Wide Entity \15\....... ....................... 76.11
------------------------------------------------------------------------
Suspension of Liquidation
In accordance with section 733(d) of the Act, the Department will
instruct U.S. Customs and Border Protection (``CBP'') to suspend
liquidation of all entries of PRCBs from Vietnam as described in the
``Scope of Investigation'' section, entered, or withdrawn from
warehouse, for consumption on or after the date of publication of this
notice in the Federal Register. The Department will instruct CBP to
require a cash deposit or the posting of a bond equal to the weighted-
average amount by which NV exceeds U.S. price, as follows: (1) The rate
for the exporter/manufacturer combinations listed in the chart above
will be the rate which has been determined in this preliminary
determination; (2) for all Vietnamese exporters of subject merchandise
which have not received their own rate, the cash-deposit rate will be
the Vietnam-wide rate; and (3) for all
[[Page 56820]]
non-Vietnamese exporters of subject merchandise which have not received
their own rate, the cash-deposit rate will be the rate applicable to
the Vietnamese exporter/manufacturer combination that supplied that
non-Vietnamese exporter. These suspension-of-liquidation instructions
will remain in effect until further notice.
International Trade Commission Notification
In accordance with section 733(f) of the Act, the Department has
notified the ITC of its preliminary affirmative determination of sales
at LTFV. Section 735(b)(2) of the Act requires the ITC to make its
final determination as to whether the domestic industry in the United
States is materially injured, or threatened with material injury, by
reason of imports of PRCBs, or sales (or the likelihood of sales) for
importation, of the subject merchandise within 45 days of the final
determination.
Public Comment
Case briefs or other written comments may be submitted to the
Assistant Secretary for Import Administration no later than two weeks
after the date of publication of this preliminary determination, and
rebuttal briefs, limited to issues raised in case briefs, no later than
five days after the deadline for submitting case briefs. See 19 CFR
351.309(c)(1)(i) and 19 CFR 351.309(d)(1). A list of authorities used
and an executive summary of issues should accompany any briefs
submitted to the Department. This summary should be limited to five
pages total, including footnotes.
In accordance with section 774 of the Act, the Department will hold
a public hearing, if requested, to afford interested parties an
opportunity to comment on arguments raised in case or rebuttal briefs.
If a request for a hearing is made, the Department intends to hold the
hearing three days after the deadline of submission of rebuttal briefs
at the U.S. Department of Commerce, 14th Street and Constitution Ave,
NW., Washington, DC 20230, at a time and location to be determined.
Parties should confirm by telephone the date, time, and location of the
hearing two days before the scheduled date.
Interested parties that wish to request a hearing, or to
participate if one is requested, must submit a written request to the
Assistant Secretary for Import Administration, U.S. Department of
Commerce, Room 1870, within 30 days after the date of publication of
this notice. See 19 CFR 351.310(c). Requests should contain the party's
name, address, and telephone number, the number of participants, and a
list of the issues to be discussed. At the hearing, each party may make
an affirmative presentation only on issues raised in that party's case
brief and may make rebuttal presentations only on arguments included in
that party's rebuttal brief.
This determination is issued and published in accordance with
sections 733(f) and 777(i)(1) of the Act.
Dated: October 27, 2009.
John M. Andersen,
Acting Deputy Assistant Secretary for Antidumping and Countervailing
Duty Operations.
[FR Doc. E9-26428 Filed 11-2-09; 8:45 am]
BILLING CODE 3510-DS-P