2010-6807. Polyethylene Retail Carrier Bags from Taiwan: Final Determination of Sales at Less Than Fair Value

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

The Department of Commerce (the Department) has determined that imports of polyethylene retail carrier bags (PRCBs) from Taiwan are being, or are likely to be, sold in the United States at less than fair value (LFTV), as provided in section 735 of the Tariff Act of 1930, as amended (the Act). The estimated margins of sales at LTFV are listed in the “Continuation of Suspension of Liquidation” section of this notice.

EFFECTIVE DATE:

March 26, 2010.

FOR FURTHER INFORMATION CONTACT:

Dmitry Vladimirov 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:

Case History

On October 27, 2009, the Department published in the Federal Register its preliminary determination in the antidumping duty investigation of PRCBs from Taiwan. See Polyethylene Retail Carrier Bags From Taiwan: Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination, 74 FR 55183 (October 27, 2009) (Preliminary Determination).

As explained in the memorandum from the Deputy Assistant Secretary for Import Administration, the Department has exercised its discretion to toll deadlines for the duration of the closure of the Federal Government from February 5, through February 12, 2010. Thus, all deadlines in this investigation have been extended by seven days. The revised deadline for the final determination in this investigation is now March 18, 2010. See Memorandum to the Record from Ronald Lorentzen, DAS for Import Administration, regarding “Tolling of Administrative Deadlines As a Result of the Government Closure During the Recent Snowstorm,” dated February 12, 2010.

As provided in section 782(i) of the Act, we conducted sales and cost verifications of the questionnaire responses submitted by the sole participating respondent, TCI Plastic Co., Ltd. (TCI). We used standard verification procedures, including examination of relevant accounting and production records, as well as original source documents provided by TCI. See Memorandum to the File entitled “Verification of the U.S. Sales Response of Interplast Group in the Antidumping Investigation of Polyethylene Retail Carrier Bags from Taiwan,” dated December 22, 2009, Memorandum to the File entitled “Verification of the Home-Market and Export-Price Sales Responses of TCI Plastic Co., Ltd., in the Antidumping Investigation of Polyethylene Retail Carrier Bags from Taiwan,” dated December 23, 2009, and Memorandum to the File entitled “Verification of the Cost Response of Tis Dis International Co. Ltd. in the Antidumping Investigation of Polyethylene Retail Carrier Bags from Taiwan,” dated January 11, 2010. All verification reports are on file and available in the Central Records Unit (CRU), Room 1117, of the main Department of Commerce building.

We received case briefs submitted by Hilex Poly Co., LLC, and Superbag Corporation (hereinafter, the petitioners) and TCI on January 21, 2010. The petitioners and TCI submitted rebuttal comments on January 26, 2010. Although a hearing was requested, the request was withdrawn and we did not hold a hearing.

Period of Investigation

The period of investigation is January 1, 2008, through December 31, 2008. This period corresponds to the four most recent fiscal quarters prior to the month of the filing of the petition, March 2009. See 19 CFR 351.204(b)(1).

Scope of the 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 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 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.

Adverse Facts Available

For the final determination, we continue to find that, by failing to provide information we requested, Ipsido Corporation (Ipsido), a respondent selected for individual examination in this investigation, did not act to the best of its ability. Thus, we continue to find that the use of adverse facts available is warranted for this company under sections 776(a)(2) and (b) of the Act. See Preliminary Determination, 74 FR at 55185-55186.

As we explained in the Preliminary Determination, the rate of 95.81 percent we selected as the adverse facts-available rate for Ipsido is the highest margin alleged in the petition (see the Petition for the Imposition of Antidumping and Countervailing Duties on Polyethylene Retail Carrier Bags from Indonesia, Taiwan, and the Socialist Republic of Vietnam, dated March 31, 2009). See also Polyethylene Retail Carrier Bags From Indonesia, Taiwan, and the Socialist Republic of Vietnam: Initiation of Antidumping Duty Investigations, 74 FR 19049, 19054 (April 27, 2009). Further, as discussed in the Preliminary Determination, we corroborated the adverse facts-available rate pursuant to section 776(c) of the Act. See Preliminary Determination, 74 FR at 55186.

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 for the Antidumping Investigation of Polyethylene Retail Carrier Bags from Taiwan” (Decision Memorandum) from John M. Andersen, Acting Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Ronald K. Lorentzen, Deputy Assistant Secretary for Import Administration, dated March 18, 2010, 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 the Decision Memorandum which is on file in the CRU. In addition, a complete version of the Decision Memorandum can be accessed directly on the Web at http://ia.ita.doc.gov/​frn/​index.html. The paper copy and electronic version of the Decision Memorandum are identical in content.

Targeted Dumping

In the Preliminary Determination, we followed the methodology we adopted in Certain Steel Nails from the United Arab Emirates: Notice of Final Determination of Sales at Not Less Than Fair Value, 73 FR 33985 (June 16, 2008), and Certain Steel Nails from the People's Republic of China: Final Determination of Sales at Less Than Fair Value and Partial Affirmative Determination of Critical Circumstances, 73 FR 33977 (June 16, 2008) (collectively, Nails), used most recently in Certain New Pneumatic Off-The-Road Tires from the People's Republic of China: Final Affirmative Determination of Sales at Less Than Fair Value and Partial Affirmative Determination of Critical Circumstances, 73 FR 40485 (July 15, 2008). See Preliminary Determination, 74 FR at 55187-55188. Based on the targeted-dumping test that we applied in the Preliminary Determination, we found a pattern of export prices and constructed export prices for comparable merchandise that differs significantly among certain customers, regions, and time periods. Id. As a result, following the methodology in Nails, we applied the average-to-transaction comparison methodology to TCI's targeted sales and the average-to-average comparison methodology to TCI's non-targeted sales; in calculating TCI's weighted-average margin, we combined the margin calculated for the targeted sales with the margin calculated for the non-targeted sales and did not offset any margins found among the targeted sales. See Preliminary Determination, 74 FR at 55188.

In the Preliminary Determination we announced that, given the now-withdrawn regulations that guided our practice in Nails, we would consider various options regarding the specific group of sales to which we apply the average-to-transaction methodology (the withdrawn targeted-dumping regulation would have limited such application to just the targeted sales). See id. We offered the following three options: 1) apply the average-to-transaction methodology just to sales found to be targeted as the withdrawn regulation directed and, consistent with our average-to-transaction practice, not offset any margins found on these transactions; 2) apply the average-to-transaction methodology to all sales to the customer, region, or time period found to be targeted (not just those specific sales found to be targeted) and, consistent with our average-to transaction practice, not offset any margins found on these transactions; and 3) apply the average-to-transaction methodology to all sales by TCI and, consistent with our average-to transaction practice, not offset any margins found on these transactions. See id.

As in the Preliminary Determination, we continue to find a pattern of export prices and constructed export prices for comparable merchandise that differs significantly among customers, regions, or by time period. See Memorandum to the File entitled “Final Determination of Sales at Less Than Fair Value in the Antidumping Duty Investigation of Polyethylene Retail Carrier Bags from Taiwan - Analysis Memorandum for TCI Plastic Co., Ltd.,” dated March 18, 2010. We continue to find, pursuant to section 777A(d)(1)(B) of the Act, that application of the average-to-average comparison method does not account for such price differences and results in the masking of dumping that would be unmasked by the application of the average-to-transaction comparison method to all sales. Accordingly, for this final determination we have applied the average-to-transaction methodology to all U.S. sales that TCI reported. For a complete discussion, see the Decision Memorandum at Comment 1.

Changes Since the Preliminary Determination

Based on our analysis of the comments received and our findings at verifications, we have made certain changes to the margin calculation for TCI. For a discussion of these changes, see Memorandum to the File entitled “Final Determination of Sales at Less Than Fair Value in the Antidumping Duty Investigation of Polyethylene Retail Carrier Bags from Taiwan - Analysis Memorandum for TCI Plastic Co., Ltd.,” dated March 18, 2010, and Memorandum to Neal Halper entitled “Cost of Production and Constructed Value Calculation Adjustments for the Final Determination TCI Plastic Co. Ltd. and Tis Dis International Co. Ltd.,” dated March 18, 2010.

Cost of Production

As explained in the Preliminary Determination (74 FR at 55190), we conducted an investigation concerning sales at prices below the cost of production in the home market. We found that, for certain specific products, more than 20 percent of TCI's home-market sales were at prices less than the cost of production and, in addition, such sales did not provide for the recovery of costs within a reasonable period of time. Therefore, we disregarded these sales and used the remaining sales as the basis for determining normal value in accordance with section 773(b)(1) of the Act. Based on this test, for this final determination we have disregarded below-cost sales by TCI.

Continuation of Suspension of Liquidation

Pursuant to section 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 PRCBs from Taiwan which were entered, or withdrawn from warehouse, for consumption on or after October 27, 2009,

The date of publication of the Preliminary Determination. We will instruct CBP to require a cash deposit or the posting of a bond equal to the weighted-average margins, as indicated below, as follows: (1) the rates for TCI and Ipsido will be the rates we have determined in this final determination; (2) if the exporter is not a firm identified in this investigation but the producer is, the rate will be the rate established for the producer of the subject merchandise; (3) the rate for all other producers or exporters will be 36.54 percent, as discussed in the “All-Others Rate” section, below. These suspension-of-liquidation instructions will remain in effect until further notice.

Manufacturer/Exporter	Weighted-Average Margin (Percent)
Ipsido Corporation	95.81
TCI Plastic Co., Ltd.	36.54

All-Others Rate

Section 735(c)(5)(A) of the Act provides that the estimated all-others rate shall be an amount equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually investigated excluding any zero or de minimis margins and any margins determined entirely under section 776 of the Act. TCI is the only respondent in this investigation for which the Department has calculated a company-specific rate. Therefore, for purposes of determining the all-others rate and pursuant to section 735(c)(5)(A) of the Act, we are using the weighted-average dumping margin calculated for TCI, 36.54 percent. See, e.g., Notice of Final Determination of Sales at Less Than Fair Value: Stainless Steel Sheet and Strip in Coils From Italy, 64 FR 30750, 30755 (June 8, 1999), and Coated Free Sheet Paper from Indonesia: Notice of Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination, 72 FR 30753, 30757 (June 4, 2007) (unchanged in Notice of Final Determination of Sales at Less Than Fair Value: Coated Free Sheet Paper from Indonesia, 72 FR 60636 (October 25, 2007)).

Disclosure

We will disclose the calculations performed within five days of the date 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 final determination. As our final determination is affirmative and in accordance with section 735(b)(2) 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 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 the 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 pursuant to sections 735(d) and 777(i)(1) of the Act.

Dated: March 18, 2010.

Ronald K. Lorentzen,

Deputy Assistant Secretary for Import Administration.

Appendix -- Issues in Decision Memorandum

1. Targeted Dumping

2. Sales Outside the Ordinary Course of Trade

3. Home-Market Warranty Expenses

4. Direct Material Costs

5. Variable Overhead Costs for Outside Processing Services

6. Unreconciled Costs

7. Financial Expense

8. U.S. Indirect Selling Expenses

9. Miscellaneous Issues