E9-29017. Polyethylene Retail Carrier Bags From Indonesia: Amended Preliminary Determination of Sales at Less Than Fair Value

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On November 3, 2009, the Department of Commerce published the preliminary determination of sales at less than fair value in the antidumping duty investigation of polyethylene retail carrier bags from Indonesia. See Polyethylene Retail Carrier Bags from Indonesia: Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination, 74 FR 56807 (November 3, 2009) (Preliminary Determination). We are amending our Preliminary Determination to correct certain ministerial errors with respect to the antidumping duty margin calculation for P.T. Super Exim Sari Ltd. (SES) and P.T. Super Makmur (SM) (collectively SESSM). The corrections to the margin for SESSM also affect the calculation of the all-others rate.

EFFECTIVE DATE:

November 3, 2009.

FOR FURTHER INFORMATION CONTACT:

Yang Jin Chun or Minoo Hatten, AD/CVD Operations, Office 5, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone [phone] or [phone], respectively.

SUPPLEMENTARY INFORMATION:

Background

On October 27, 2009, the Department issued a preliminary determination that polyethylene retail carrier bags from Indonesia are being, or are likely to be, sold in the United States at less than fair value as provided in section 733 of the Tariff Act of 1930, as amended (the Act). See Preliminary Determination. On November 2, 2009, SESSM filed timely allegations of ministerial errors contained in the Preliminary Determination. After reviewing the allegations, we have determined that the Preliminary Determination included significant ministerial errors. Therefore, in accordance with 19 CFR 351.224(e), we have made changes to the Preliminary Determination as described below.

Period of Investigation

The period of investigation is January 1, 2008, through December 31, 2008.

Scope of the Investigation

The merchandise subject to this investigation 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 (15.24 cm) but not longer than 40 inches (101.6 cm).

Polyethylene retail carrier bags 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 this investigation 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 this investigation 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 this investigation. Furthermore, although the HTSUS subheading is provided for convenience and customs purposes, the written description of the scope of this investigation is dispositive.

Significant Ministerial Error

Ministerial errors are defined in section 735(e) of the Act as “errors in addition, subtraction, or other arithmetic function, clerical errors resulting from inaccurate copying, duplication, or the like, and any other type of unintentional error which the administering authority considers ministerial.” Section 351.224(e) of the Department's regulations provides that the Department “will analyze any comments received and, if appropriate, correct any significant ministerial error by amending the preliminary determination.” A significant ministerial error is defined as a ministerial error, the correction of which, singly or in combination with other errors, would result in (1) a change of at least five absolute percentage points in, but not less than 25 percent of, the weighted-average dumping margin calculated in the original (erroneous) preliminary determination, or (2) a difference between a weighted-average dumping margin of zero or de minimis and a weighted-average dumping margin of greater than de minimis or vice versa. See 19 CFR 351.224(g).

Ministerial-Error Allegations

SESSM argues that the Department treated SESSM as a single entity throughout the Preliminary Determination but the Department calculated the antidumping duty margin for SESSM erroneously in the Preliminary Determination by treating SES and SM as two separate entities. Despite the Department's stated intent to treat SES and SM as a single entity, SESSM claims, the Department's calculation programs used two different manufacturer codes SESSM reported (SES and SM) in its sales databases to match U.S. and home-market sales transactions. As a result, SESSM states, the Department matched SES's U.S. sales with SES's home-market sales but not with SM's home-market sales and did not compare SM's U.S. sales to comparable sales of merchandise produced by SES and sold in the home market.

SESSM asserts that, as a result of the oversight, the Department also used the manufacturer code to segregate SES's sales and cost data from SM's sales and cost data for cost-test purposes. SESSM suggests that the Department revise the calculation programs to use one unified manufacturer code for model-matching and cost-test purposes. SESSM asserts that its suggested programming language is consistent with other investigations and reviews in which the Department has had to consider U.S., home-market, or third-country sales by multiple affiliated companies within a single entity.

SESSM claims that these ministerial errors in the calculation of an antidumping duty margin in the Preliminary Determination for SESSM are significant because the correction of these errors would result in a cumulative change of at least five percentage points but not less than 25 percent of the original weighted-average dumping margin or would result in a de minimis weighted-average dumping margin in accordance with 19 CFR 351.224(g).

We agree with SESSM that we intended to treat SES and SM as a single entity. See, e.g., Preliminary Determination in which we treated SES and SM as a single entity and calculated a single margin for SESSM. We inadvertently treated SES and SM as separate entities for purposes of matching U.S. and home-market sales and conducting the cost test. We find that this is a ministerial error in accordance with section 735(e) of the Act. Further, correction of the errors confirms that they were significant errors under 19 CFR 351.224(g).

Amended Preliminary Determination

We determine that SESSM's allegations qualify as significant ministerial errors as defined in 19 CFR 351.224(g) because they result in a change of more than five absolute percentage points to the antidumping duty margin for SESSM and is not less than 25 percent of the original weighted-average dumping margin. Accordingly, we have corrected these errors SESSM alleged. To correct these errors, we have used an identical manufacturer code for purposes of matching U.S. and home-market sales and conducting the cost test for this amended preliminary determination. See more details in the SESSM amended preliminary determination analysis memorandum dated concurrently with the issuance of this amended preliminary determination. As a result of correcting these significant ministerial errors in the Preliminary Determination for SESSM, the simple-average all-others rate has also changed. As a result of the corrected ministerial errors, the weighted-average antidumping duty margin for SESSM is 9.10 percent and the simple-average all-others rate is 38.14 percent.

The collection of bonds or cash deposits and suspension of liquidation will be revised accordingly and parties will be notified of this determination in accordance with sections 733(d) and (f) of the Act. The effective date of the implementation of collection of bonds or cash deposits and suspension of liquidation as revised in this amended preliminary determination will be the effective date of the Preliminary Determination. We will issue instructions to U.S. Customs and Border Protection (CBP) authorizing it to refund the antidumping duty deposits SESSM made in excess of the amended antidumping duty margin for SESSM since the effective date of the Preliminary Determination. We will also issue instructions to CBP authorizing it to refund the antidumping duty deposits companies subject to the all-others rate made in excess of the amended all-others rate since the effective date of the Preliminary Determination.

ITC Notification

In accordance with section 733(f) of the Act, we have notified the International Trade Commission (ITC) of our amended preliminary determination. If our final determination is affirmative, the ITC will make its final determination no later than 45 days after our final determination as to whether imports of polyethylene retail carrier bags from Indonesia are materially injuring, or threatening material injury to, the U.S. industry. See section 735(b)(2) of the Act.

This amended determination is issued and published pursuant to sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.224(e).

Dated: November 25, 2009.

Ronald K. Lorentzen,

Deputy Assistant Secretary for Import Administration.