[Federal Register: June 18, 2004 (Volume 69, Number 117)]
[Notices]
[Page 34122-34125]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18jn04-57]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-549-821]
Notice of Final Determination of Sales at Less Than Fair Value:
Polyethylene Retail Carrier Bags From Thailand
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
EFFECTIVE DATE: June 18, 2004.
SUMMARY: On January 26, 2003, the Department of Commerce published its
preliminary determination of sales at less than fair value of the
investigation on polyethylene retail carrier bags from Thailand. The
period of investigation is April 1, 2002, through March 31, 2003. The
investigation covers five manufacturers/exporters.
We invited interested parties to comment on our preliminary
determination of sales at less than fair value. Based on our analysis
of the comments received, we have made changes to our calculations. The
final dumping margins for this investigation are listed in the ``Final
Determination Margins'' section below.
FOR FURTHER INFORMATION CONTACT: Lyn Johnson (TPBG) or Fred Aziz
(Universal), Import Administration, International Trade Administration,
U.S. Department of Commerce, 14th Street and Constitution Avenue, NW.,
[[Page 34123]]
Washington, DC 20230; telephone: (202) 482-4733.
Final Determination
The Department of Commerce (the Department) has conducted this
antidumping investigation in accordance with section 735 of the Tariff
Act of 1930, as amended (the Act). We have determined that polyethylene
retail carrier bags (PRCBs) from Thailand are being sold, or are likely
to be sold, in the United States at less than fair value (LTFV), as
provided in section 735 of the Act. The estimated margins of sales at
LTFV are shown in the ``Final Determination Margins'' section of this
notice.
Case History
The preliminary determination of sales at LTFV in this
investigation was issued on January 21, 2004. See Notice of Preliminary
Determination of Sales at Less Than Fair Value and Postponement of
Final Determination: Polyethylene Retail Carrier Bags from Thailand, 69
FR 3552 (January 26, 2004) (Preliminary Determination).
Since the Preliminary Determination the following events have
occurred. In February 2004, we conducted verifications of the
questionnaire responses of the respondents, Thai Plastic Bags
Industries Co., Ltd. (TPBI), Winner's Pack Co., Ltd., and APEC Film Ltd
(APEC) (collectively the Thai Plastic Bags Industries Group (TPBG)),
and Advance Polybag Inc., Alpine Plastics Inc., API Enterprises Inc.,
and Universal Polybag Co., Ltd. (collectively Universal). We gave
interested parties an opportunity to comment on the Preliminary
Determination. We received case briefs on April 30, 2004, from the
respondents and May 3, 2004, from the Polyetheylene Retail Carrier Bag
Committee and its individual members, PCL Packing, Inc., Hilex Poly
Co., LLC, Superbag Corp., Vanguard Plastics Inc., and Inteplast Group,
Ltd. (collectively, the petitioners). We received rebuttal briefs on
May 6, 2004, from both the respondents and the petitioners. The
Department held a public hearing on May 14, 2004, at the request of the
petitioners.
Period of Investigation
The period of investigation (POI) corresponds to the four most
recent fiscal quarters prior to the filing of the petition, April 1,
2002, through March 31, 2003.
Scope of Investigation
The merchandise subject to this investigation is PRCBs, 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 .035
inch (0.889 mm) and no less than .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 the petition excludes (1) PRCBs that are not
printed with logos or store names and that are closeable with
drawstrings made of polyethylene film and (2) PRCBs 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 the subject merchandise are currently classifiable under
statistical category 3923.21.0090 of the Harmonized Tariff Schedule of
the United States. This subheading also covers products that are
outside the scope of this investigation. Furthermore, although the
HTSUS subheading is provided for convenience and customs purposes, our
written description of the scope of this investigation is dispositive.
Analysis of Comments Received
All issues raised in the case and rebuttal briefs by parties to
this antidumping investigation are addressed in the ``Issues and
Decision Memorandum'' (Decision Memorandum) from Jeffrey May, Deputy
Assistant Secretary, Import Administration, to James J. Jochum,
Assistant Secretary for Import Administration, dated June 9, 2004,
which is hereby adopted by this notice. A list of the issues which
parties have raised and to which we have responded, all of which are in
the Decision Memorandum, is attached to this notice as an appendix.
Parties can find a complete discussion of all issues raised in this
investigation and the corresponding recommendations in this public
memorandum which is on file in the Central Records Unit, room B-099 of
the main Department of Commerce building. In addition, a complete
version of the Decision Memorandum can be accessed directly on the Web
at http://ia.ita.doc.gov/. The paper copy and electronic version of the
Decision Memorandum are identical in content.
Use of Facts Otherwise Available
Section 776(a)(2) of the Act provides that, if an interested party
withholds information that has been requested by the Department, fails
to provide such information in a timely manner or in the form or manner
requested, significantly impedes a proceeding under the antidumping
statute, or provides such information but the information cannot be
verified, the Department shall, subject to sections 782(d) and (e) of
the Act, use facts otherwise available in reaching the applicable
determination.
Specifically, section 776(a)(2)(B) of the Act requires the
Department to use facts available when a party does not provide the
Department with information by the established deadline or in the form
and manner requested by the Department. In addition, section 776(b) of
the Act provides that, if the Department finds that an interested party
``has failed to cooperate by not acting to the best of its ability to
comply with a request for information,'' the Department may use
information that is adverse to the interests of that party as facts
otherwise available.
As explained in the Preliminary Determination, Champion Paper
Polybags Ltd., TRC Polypack, and Zip-Pac Co., Ltd., failed to respond
to our July 14, 2003, request for information. See Preliminary
Determination at 69 FR 3552. Consistent with our decision in the
Preliminary Determination and pursuant to section 776(a) of the Act, in
reaching our final determination we have used total facts available for
all three of these companies. These firms did not provide the data we
needed to decide whether they should be selected as mandatory
respondents. Also, because these companies failed to respond to our
requests for information, we have found that they failed to cooperate
to the best of their ability. Therefore, pursuant to section 776(b) of
the Act, we have used an adverse inference in selecting from the facts
available for the margins for these companies. Accordingly, we find
that the highest margin based on petition information, as we adjusted
for the initiation of this investigation, 122.88 percent, is
corroborated within the meaning of section 776(c) of the Act. See
Initiation of Antidumping Duty Investigations: Polyethylene Retail
Carrier Bags from The People's Republic of China, Malaysia, and
Thailand, 68 FR 42002 (July 16, 2003).
[[Page 34124]]
Section 776(c) of the Act provides that the Department shall, to
the extent practicable, corroborate secondary information used for
facts available by reviewing independent sources reasonably at its
disposal. Information from the petitioners constitutes secondary
information. The Statement of Administrative Action accompanying the
Uruguay Round Agreements Act, H.R. Doc. 103-316, at 870 (1994) (SAA),
provides that the word ``corroborate'' means that the Department will
satisfy itself that the secondary information used has probative value.
As discussed in the memorandum to the file entitled ``Corroboration
of Facts Available'', dated January 16, 2004, we found that the export-
price (EP) and normal-value information in the petition were reasonable
and, therefore, determined that the petition information has probative
value. Furthermore, there is no information on the record that
demonstrates that the rate we have selected is an inappropriate total
adverse facts-available rate for the companies in question. On the
contrary, our existing record supports the use of this rate as the
dumping margin for these firms. Therefore, we consider the selected
rate to have probative value with respect to the firms in question and
to reflect the appropriate adverse inference. Accordingly, for the
final determination, the margin for Champion Paper Polybags Ltd., TRC
Polypack, and Zip-Pac Co., Ltd., is 122.88 percent.
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.
Cost of Production
As explained in our ``Request to Initiate a Cost Investigation''
dated November 21, 2003, we conducted a COP investigation of sales by
TPBG in the home market pursuant to section 773(b)(1) of the Act.
In accordance with section 773(b)(3) of the Act, we calculated the
cost of production (COP) based on the sum of the costs of materials and
fabrication employed in producing the foreign like product, the
selling, general and administrative (SG&A) expenses, and all costs and
expenses incidental to packing the merchandise. In our COP analysis, we
used the home-market sales and COP information provided in TPBG's
questionnaire responses.
After calculating the COP, in accordance with section 773(b)(1) of
the Act, we tested whether home-market sales of the foreign like
product were made at prices below the COP within an extended period of
time in substantial quantities and whether such prices permitted the
recovery of all costs within a reasonable period of time. We compared
model-specific COPs to the reported home-market prices less any
applicable movement charges.
Pursuant to section 773(b)(2)(C) of the Act, when less than 20
percent of TPBG's sales of a given product were at prices less than the
COP, we did not disregard any below-cost sales of that product because
the below-cost sales were not made in substantial quantities within an
extended period of time. When 20 percent or more of a respondent's
sales of a given product during the POI were at prices less than the
COP, we disregarded the below-cost sales because they were made in
substantial quantities within an extended period of time pursuant to
sections 773(b)(2)(B) and (C) of the Act and because, based on
comparisons of prices to weighted-average COPs for the POI, we
determined that these sales were at prices which would not permit
recovery of all costs within a reasonable period of time in accordance
with section 773(b)(2)(D) of the Act. Based on this test, in the
Preliminary Determination and for this final determination, we
disregarded below-cost sales with respect to TPBG.
Verification
As provided in section 782(i) of the Act, we verified the
information submitted by the respondents for use in our final
determination. We used standard verification procedures, including
examination of relevant accounting and production records, as well as
original source documents provided by respondents.
Changes Since the Preliminary Determination
Since the Preliminary Determination, we have made the following
changes to our margin calculations:
TPBG
1. We incorporated pre-verification changes by using the revised
U.S., home-market, and cost-of-production sales listings provided in
TPBG's February 2, 2004, filing.
2. We adjusted TPBG's reported U.S., home-market, and cost sales
listings for corrections presented on the first day of the cost
verification (see the cost verification report for TPBG dated March 31,
2004) and the first day of the sales verification (see the sales
verification report dated April 15, 2004).
3. We adjusted TPBG's reported cost of inputs obtained from
affiliates to reflect the higher of transfer price or market price in
accordance with section 773(f)(2) of the Act. See Comment 5 of the
Decision Memorandum.
4. We adjusted APEC's reported costs for an unreconciled difference
between the total costs from the financial accounting system and the
total costs from the cost of production (COP) and constructed value
(CV) file. See Comment 14 of the Decision Memorandum.
5. We adjusted TPBI's reported costs for an unreconciled difference
between the total costs from the financial accounting system and the
total costs from the COP and CV file. See Comment 10 of the Decision
Memorandum.
6. We adjusted TPBI's reported costs for a difference in the
production quantities from the production system and those used to
calculate the per-unit costs. See Comment 10 of the Decision
Memorandum.
7. We adjusted TPBI's general and administrative (G&A) rate for a
mathematical error. We also adjusted Winner's Pack's financial expense
rate for a mathematical error. See Comment 14 of the Decision
Memorandum.
8. We adjusted APEC's financial expense rate to disallow interest
income offsets not related to short-term assets. See Comment 13 of the
Decision Memorandum.
9. We made adjustments to U.S. price to account for two of the
three types of duty drawback claims reported. See Comment 8 of the
Decision Memorandum.
10. We revised the amount for indirect selling expenses (ISEs)
incurred in Thailand as a result of verification. We also revised the
home-market ISEs as a result of verification and calculation errors
asserted by the petitioners. See Comment 15 of the Decision Memorandum.
See ``Final Determination Analysis Memorandum for Thai Plastic Bags
Group,'' memorandum to the file dated June 9, 2004, and ``Constructed
Value Calculation Adjustments for Thai Plastic Bags Group for the Final
Determination,'' Memorandum to the File from the Office of Accounting,
dated June 9, 2004, for more details concerning the above changes.
Universal
1. We imputed interest expense for a certain loan. For the final
determination, we applied the interest rate in Thailand, as published
by the International Monetary Fund, to the average daily loan balance
of the loan, based on the actual number of days that
[[Page 34125]]
the principal amount of the loan was outstanding, to calculate the
imputed interest expense. See Comment 7 of the Decision Memorandum.
2. We increased the total cost of manufacture to value affiliated-
party inputs of masterbatch (color concentrate) at the higher of
transfer price or market price. See Comment 5 of the Decision
Memorandum.
3. We adjusted the reported costs to include unreconciled
differences and other adjustments, found at verification, in the
reconciliations of the financial statements to the financial accounting
system and of the financial accounting system to the reported costs for
the POI. See Memorandum from Nancy Decker through Theresa Caherty to
Neal Halper, ``Universal Polybag Co., Ltd. Constructed Value
Calculation Adjustments for the Final Determination'' dated June 9,
2004 (Universal Final Cost Memorandum).
4. We adjusted general and administrative (G&A) and financial
expenses ratios to remove packing from the denominator of the
calculation of these ratios. We then applied G&A and financial expenses
to the total packing-exclusive cost of manufacturing.
5. We have recalculated the rates used for CV selling expenses and
CV profit. See Comment 4 of the Decision Memorandum.
See the ``Final Determination Analysis Memorandum for Universal
Polybag,'' Memorandum to the File, dated June 9, 2004, and
``Constructed Value Calculation Adjustments for Universal Polybag Co.,
Ltd. for the Final Determination,'' Memorandum to the File from the
Office of Accounting dated June 9, 2004, for more details concerning
the above changes.
Continuation of Suspension of Liquidation
Pursuant to 735(c)(1)(B) of the Act, we will instruct U.S. Customs
and Border Protection (CBP) to continue to suspend liquidation of all
entries of subject merchandise from Thailand, except for subject
merchandise produced and exported by TPBG (which has a de minimis
weighted-average margin) entered, or withdrawn from warehouse, for
consumption on or after January 26, 2004, the date of the publication
of our preliminary determination. CBP shall continue to require a cash
deposit or the posting of a bond equal to the estimated amount by which
the normal value exceeds the U.S. price as shown below. These
instructions suspending liquidation will remain in effect until further
notice.
Final Determination Margins
The weighted-average dumping margins are as follows:
------------------------------------------------------------------------
Weighted-
average
Exporter/manufacturer percentage
margin
------------------------------------------------------------------------
TPBG....................................................... 0.62
Universal.................................................. 5.66
Champion Paper Polybags Ltd................................ 122.88
TRC Polypack............................................... 122.88
Zip-Pac Co., Ltd........................................... 122.88
All Others................................................. 5.66
------------------------------------------------------------------------
Pursuant to section 735(c)(5)(A) of the Act, we have excluded from
the calculation of the all-others rate margins which are zero or de
mimimis or determined entirely on facts available. See ``Antidumping
Duty Investigation on Polyethylene Retail Carrier Bags from Thailand--
Analysis Memo for All-Others Rate,'' dated June 9, 2004. The Department
will disclose calculations performed within five days of publication of
this notice to parties in this proceeding in accordance with 19 CFR
351.224(b).
International Trade Commission Notification
In accordance with section 735(d) of the Act, we have notified the
International Trade Commission (ITC) of our determination of sales at
LTFV. As our final determination is affirmative and in accordance with
section 735(b) of the Act the ITC will determine, within 45 days,
whether the domestic industry in the United States is materially
injured, or threatened with material injury, by reason of imports, or
sales (or the likelihood of sales) for importation, of the subject
merchandise. If the ITC determines that material injury or threat of
material injury does not exist, the proceeding will be terminated and
all securities posted will be refunded or canceled. If the ITC
determines that such injury does exist, the Department will issue an
antidumping duty order directing CBP to assess antidumping duties on
all imports of the subject merchandise entered, or withdrawn from
warehouse, for consumption on or after the effective date of the
suspension of liquidation.
Notification Regarding APO
This notice also serves as a reminder to parties subject to
administrative protective order (APO) of their responsibility
concerning the disposition of proprietary information disclosed under
APO in accordance with 19 CFR 351.305. Timely notification of return/
destruction of APO materials or conversion to judicial protective order
is hereby requested. Failure to comply with the regulations and the
terms of an APO is a sanctionable violation.
This determination is issued and published in accordance with
sections 735(d) and 777(i)(1) of the Act.
Dated: June 9, 2004.
James J. Jochum,
Assistant Secretary for Import Administration.
Issues Appendix
1. Foreign and Domestic Production
2. Allocation of Indirect Selling Expenses
3. Date of Sale
4. Surrogate-Value Information
5. Affiliated-Party Inputs
6. Inputed Interest on Long-Term Loans
7. Duty Drawback
8. Affiliations
9. Miscellaneous Cost Issues
10. Pre-Verification and Verification Corrections
[FR Doc. 04-13814 Filed 6-17-04; 8:45 am]