E9-16283. Polyethylene Retail Carrier Bags From Malaysia: Preliminary Results of Antidumping Duty Administrative Review

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

In response to a request from an interested party, the Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on polyethylene retail carrier bags (PRCBs) from Malaysia. The review covers one manufacturer/exporter. The period of review is August 1, 2007, through July 31, 2008. We have preliminarily determined that sales have been made below normal value by the company subject to this review. We invite interested parties to comment on these preliminary results. Parties who submit comments in this review are requested to submit with each argument a statement of each issue and a brief summary of the argument.

DATES:

Effective Date: July 9, 2009.

FOR FURTHER INFORMATION CONTACT:

Jerrold Freeman or Yang Jin Chun, 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] and [phone], respectively.

SUPPLEMENTARY INFORMATION:

Background

On August 9, 2004, we published in the Federal Register the antidumping duty order on PRCBs from Malaysia. See Antidumping Duty Order: Polyethylene Retail Carrier Bags From Malaysia, 69 FR 48203 (August 9, 2004). On August 1, 2008, we published in the Federal Register a notice of opportunity to request an administrative review of the antidumping duty order on PRCBs from Malaysia. See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 73 FR 44966 (August 1, 2008). Pursuant to section 751(a)(1) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.213(b), the Polyethylene Retail Carrier Bag Committee and its individual members, Hilex Poly Co., LLC, and Superbag Corporation (collectively, the petitioners), requested an administrative review of the antidumping duty order on PRCBs from Malaysia with respect to Euro Plastics Malaysia Sdn. Bhd. (Euro Plastics) on September 2, 2008. On September 30, 2008, in accordance with 19 CFR 351.221(c)(1)(i), we published a notice of initiation of administrative review of the order. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Requests for Revocation in Part, 73 FR 56795 (September 30, 2008). We are conducting the administrative review of the order in accordance with section 751(a) of the Act. The period of review is August 1, 2007, through July 31, 2008.

Scope of the Order

The merchandise subject to the order is PRCBs which 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 the order 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 the subject merchandise are currently classifiable under statistical category 3923.21.00.85 of the Harmonized Tariff Schedule of the United States (HTSUS). This subheading also covers products that are outside the scope of the order. Furthermore, although the HTSUS subheading is provided for convenience and customs purposes, the written description of the scope of the order is dispositive.

Duty-Absorption Determination

On October 30, 2008, the petitioners requested that the Department determine whether antidumping duties have been absorbed by Euro Plastics pursuant to 19 CFR 351.213(j). In making a duty-absorption determination, the Department will determine whether antidumping duties have been absorbed by a producer or exporter subject to the review if the subject merchandise is sold in the United States through an importer that is affiliated with such producer or exporter. See section 751(a)(4) of the Act and 19 CFR 351.213(j). Because we published the order in 2004 and this administrative review covers all or part of a period falling between the third or fourth anniversary of the publication of an antidumping duty order, under 19 CFR 351.213(j), the petitioners may request the Department to determine whether Euro Plastics absorbed antidumping duties. Because Euro Plastics made constructed export-price (CEP) sales to the United States during the period of review, a duty-absorption determination is relevant with respect to Euro Plastics CEP sales. The Department presumes that a respondent under the allegation of duty absorption will absorb the duties for its U.S. sales that have been made at prices below normal value. The respondent has the burden to rebut the presumption of duty absorption. See 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), and the accompanying Issues and Decision Memorandum (I&D Memo) at Comment 5, Section C.

The burden is on the respondent to demonstrate that it did not absorb antidumping duties because the respondent is the only party to the review able to provide such evidence. In this review, Euro Plastics is the party that possesses the information relevant to duty absorption. In our May 21, 2009, supplemental questionnaire, we asked Euro Plastics to respond to the petitioners' allegation of duty absorption. Euro Plastics did not provide information to rebut the allegation. Therefore, we preliminarily find that Euro Plastics has absorbed duties for the CEP sales it made during the period of review.

Export Price and Constructed Export Price

To determine whether sales of PRCBs from Malaysia to the United States were made at prices less than normal value, we compared the U.S. price to the normal value. For the price of sales by Euro Plastics to the United States, we used export price (EP) and CEP as defined in sections 772(a) and (b) of the Act, respectively. We calculated EP and CEP for Euro Plastics based on the prices of the subject merchandise sold to unaffiliated customers in, or for exportation to, the United States. See section 772(c) of the Act. We made deductions for discounts as appropriate. We also made deductions for any movement expenses in accordance with section 772(c)(2)(A) of the Act. Consistent with section 772(d)(1) of the Act, we calculated CEP by deducting selling expenses associated with economic activities that occurred in the United States. These selling expenses include direct and indirect selling expenses. In accordance with sections 772(d)(3) and (f) of the Act, we also deducted the profit allocated to expenses deducted under section 772(d)(1) of the Act. In accordance with section 772(f) of the Act, we computed profit based on the total revenues realized on sales in both the U.S. and home markets, less all expenses associated with those sales. We then allocated profit to expenses incurred with respect to U.S. economic activity based on the ratio of total U.S. expenses to total expenses for both the U.S. and home markets. Finally, we made an adjustment for profit allocated to these expenses in accordance with section 772(d)(3) of the Act.

For certain U.S. sales, Euro Plastics reported shipment dates which preceded the date of invoice. For these sales, Euro Plastics reported the date of invoice as the date of sale. In accordance with 19 CFR 351.401(i), the Department may use a date other than the date of invoice as the date of sale if “a different date better reflects the date on which the exporter or producer establishes the material terms of sale.” It is the Department's normal practice to use the earlier of the shipment date or the date of invoice as the date of sale. See, e.g., Stainless Steel Sheet and Strip in Coils from the Republic of Korea; Preliminary Results and Partial Rescission of Antidumping Duty Administrative Review, 71 FR 18074, 18079-80 (April 10, 2006), unchanged in Stainless Steel Sheet and Strip in Coils From the Republic of Korea; Final Results and Rescission of Antidumping Duty Administrative Review in Part, 72 FR 4486 (January 31, 2007); see also Certain Steel Concrete Reinforcing Bars From Turkey; Final Results of Antidumping Duty Administrative Review and New Shipper Review and Determination To Revoke in Part, 72 FR 62630 (November 6, 2007), and the accompanying I&D Memo at Comment 2. Consistent with our normal practice, for all U.S. sales Euro Plastics reported, we used the earlier of the date of invoice or the shipment date as the date of sale.

Comparison-Market Sales

In order to determine whether there was a sufficient volume of sales in the comparison market to serve as a viable basis for calculating the normal value, we compared the volume of home-market sales of the foreign like product to the volume of the U.S. sales of the subject merchandise in accordance with section 773(a) of the Act. Based on this comparison of the aggregate quantities of sales in the comparison market (i.e., Malaysia) and United States and absent any information that a particular market situation in the exporting country did not permit a proper comparison, we determined that the quantity of the foreign like product sold by Euro Plastics in the exporting country was sufficient to permit a proper comparison with the sales of the subject merchandise to the United States, pursuant to section 773(a)(1) of the Act. Thus, we determined that the home market was viable during the period of review. See section 773(a)(1) of the Act. Therefore, in accordance with section 773(a)(1)(B)(i) of the Act, we based normal value for the respondent on the prices at which the foreign like product was first sold for consumption in the exporting country in the usual commercial quantities and in the ordinary course of trade and, to the extent practicable, at the same level of trade as the U.S. sales.

Cost of Production

In accordance with section 773(b) of the Act, we disregarded below-cost sales in the last completed segment of this proceeding with regard to Euro Plastics. See Polyethylene Retail Carrier Bags from Malaysia: Final Results of Antidumping Duty Administrative Review, 72 FR 44825, 44826 (August 9, 2007). Therefore, for this review, we have reasonable grounds to believe or suspect that sales of the foreign like product under consideration for the determination of normal value may have been made at prices below the cost of production (COP) as provided by section 773(b)(2)(A)(ii) of the Act. Pursuant to section 773(b)(1) of the Act, we conducted a COP investigation of sales in the home market by Euro Plastics.

In accordance with section 773(b)(3) of the Act, we calculated COP for Euro Plastics 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 comparison-market sales and COP information provided by the respondent in its questionnaire responses and revised the COP data in several ways.

We revised the reported direct material cost to reflect a single period-of-review average cost for each resin type identified in the physical characteristics we use to determine identical and similar merchandise (i.e., high-density resin, low-density resin, and linear low-density resin). For each resin type we calculated an average per-unit resin amount and applied it to each product identified by control number based on the actual usage. See the July 2, 2009, memorandum to Neal M. Halper entitled “Cost of Production and Constructed Value Calculation Adjustments for the Preliminary Results—Euro Plastics Malaysia Sdn. Bhd.”

In the normal course of business, Euro Plastics explained in its response, it does not weigh finished products. Production quantities are recorded in its books and records by cartons, and Euro Plastics uses a standard conversion formula to calculate the quantity of bags in kilograms. Euro Plastics weighs the finished products only before shipping. Euro Plastics reported two different cost databases. In one cost database, Euro Plastics used production quantities calculated as the actual weight of shipped products adjusted for the changes in standard inventory weights. Euro Plastics based the second database on production quantities by cartons converted to kilograms using the standard conversion formula. For the preliminary results, we have used the actual-weight database because it represents most closely the actual quantity of products produced during the period of review.

After calculating the COP, we tested whether comparison-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. See section 773(b)(2) of the Act. In order to determine whether the sales were made at below-cost prices, we compared model-specific COPs to the reported comparison-market prices less any applicable movement charges, discounts, and rebates. See section 773(b) of the Act.

Pursuant to section 773(b)(2)(C) of the Act, where less than 20 percent of the respondent's sales of a given product during the period of review were at prices less than the COP, we did not disregard any below-cost sales of that product because we determined preliminarily that the below-cost sales were not made in substantial quantities. Where 20 percent or more of the respondent's sales of a given product during the period of review were at prices less than the COP, we disregarded the below-cost sales because we determined preliminarily that they were made in substantial quantities within an extended period of time, pursuant to sections 773(b)(2)(B) and (C) of the Act. Based on comparisons of prices to weighted-average COPs for the period of review, we determined preliminarily 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. See Euro Plastics Preliminary Results Analysis Memorandum dated July 2, 2009. Based on this test, we disregarded the respondent's below-cost sales and used the remaining sales as the basis for determining normal value in accordance with section 773(b)(1) of the Act.

Euro Plastics relied on its 2007 financial statements to calculate the COP because its audited 2008 financial statements were not yet available. The period of review covers five months in 2007 and seven months in 2008; therefore, we requested that Euro Plastics recalculate its general and administrative (G&A) expense and financial-expense rates using the audited 2008 financial statements. Euro Plastics stated that, as soon as the audited 2008 financial statements become available, the company will resubmit the calculation of the G&A and financial-expense rates. Accordingly, for the final results, we intend to use G&A and financial-expense rates based on the audited 2008 financial statements.

Model-Matching Methodology

In making our comparisons of U.S. sales with sales of the foreign like product in the home market, we used the following methodology. If an identical comparison-market model with identical physical characteristics as listed below was reported, we made comparisons to weighted-average comparison-market prices that were based on all sales which passed the COP test of the identical product during a contemporaneous month. If there were no contemporaneous sales of an identical model, we identified the most similar comparison-market model. To determine the most similar model, we matched the foreign like product based on the physical characteristics reported by the respondent in the following order of importance: (1) Quality, (2) bag type, (3) length, (4) width, (5) gusset, (6) thickness, (7) percentage of high-density polyethylene resin, (8) percentage of low-density polyethylene resin, (9) percentage of low linear-density polyethylene resin, (10) percentage of color concentrate, (11) percentage of ink coverage, (12) number of ink colors, (13) number of sides printed.

Normal Value

We based normal value for Euro Plastics on the prices of the foreign like products it sold to its home-market customers. We made adjustments for differences in packing expense in accordance with section 773(a)(6)(A) of the Act. We also made adjustments for differences in cost attributable to differences in physical characteristics of the merchandise pursuant to section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411. In addition, we made adjustments for differences in circumstances of sale in accordance with section 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410. For comparisons to EP, we made circumstance-of-sale adjustments by deducting home-market direct selling expenses incurred on home-market sales from, and adding U.S. direct selling expenses to, normal value. For comparisons to CEP, we made circumstance-of-sale adjustments by deducting home-market direct selling expenses from normal value. In accordance with section 773(a)(1)(B)(i) of the Act, we based normal value on sales at the same level of trade as the EP or the CEP. See the “Level of Trade” section below.

We did not deduct from the calculation of normal value certain taxes and inland-freight expenses which Euro Plastics claimed for its home-market sales. In its home-market sales database, Euro Plastics reported a variable named TAXH. Euro Plastics explained that TAXH contains combined amounts for import duties and sales taxes that Euro Plastics incurred on its home-market sales. Because the statute allows for deduction of any taxes imposed directly upon the foreign like product which have not been collected on the subject merchandise in accordance with section 773(6)(B)(iii) of the Act but the statute does not allow such a deduction for import duties, we requested Euro Plastics to report the sales tax separately from the import duties. In response to our request, Euro Plastics reported that the amount under TAXH is a combination of import duties, sales taxes, and transporter charges but the company did not report the sales tax separately under a separate variable as we had requested. In addition, Euro Plastics did not provide sufficient supporting documentation to justify the deduction of TAXH from the gross unit price in its claim for amounts under TAXH.

Euro Plastics calculated its inland-freight expense from the factory to the place of delivery based on a period-of-review average. Euro Plastics explained that, because its freight carriers made multiple stops during their delivery runs, it is not feasible to calculate this expense in a more specific manner. Record evidence indicates, however, that Euro Plastics could employ a more specific methodology to calculate this expense but Euro Plastics did not do so.

A respondent seeking a decision in its favor has the burden to produce and present information to support its claim. See 19 CFR 351.401(b)(c). The burden of evidentiary production belongs to “the party in possession of the necessary information.” See, e.g., Zenith Elecs. Corp. v. United States, 988 F.2d 1573, 1583 (CAFC 1993). A respondent has the burden to present the information in the first instance with its request for a decision in its favor. See NTN Bearing Corp. of Am. v. United States, 997 F.2d 1453, 1458 (CAFC 1993). Because Euro Plastics did not respond with sufficient information that we requested with respect to its claims for deductions in its favor, we have denied the claims by Euro Plastics for adjustments to normal value for the amounts reported under TAXH and the inland-freight expense at issue. See Euro Plastics Preliminary Analysis Memorandum dated July 2, 2009, for more detail.

Constructed Value

In accordance with section 773(a)(4) of the Act, we used constructed value as the basis for normal value when there were no usable sales of the foreign like product in the comparison market. We calculated constructed value in accordance with section 773(e) of the Act. We included the cost of materials and fabrication, SG&A expenses, U.S. packing expenses, and profit in the calculation of constructed value. We made the same adjustment to constructed value concerning resin costs as outlined in the “Cost of Production” section above. In accordance with section 773(e)(2)(A) of the Act, we based SG&A expenses and profit on the amounts incurred and realized by Euro Plastics in connection with the production and sale of the foreign like product in the ordinary course of trade for consumption in the home market.

We made adjustments to constructed value in accordance with section 773(a)(8) of the Act and 19 CFR 351.410 for circumstance-of-sale differences. For comparisons to EP, we made circumstance-of-sale adjustments by deducting home-market direct selling expenses from, and adding U.S. direct selling expenses to, constructed value. For comparisons to CEP, we made circumstance-of-sale adjustments by deducting home-market direct selling expenses from constructed value. We calculated constructed value at the same level of trade as the EP or CEP.

Level of Trade

Section 773(a)(1)(B)(i) of the Act provides that, to the extent practicable, the Department will calculate normal value based on sales at the same level of trade as the EP and CEP. The normal-value level of trade is that of the starting-price sales in the comparison market before any adjustments. See section 773(a)(1)(B)(i) of the Act. Euro Plastics reported identical selling functions along the chain of distribution between the producer and the unaffiliated customer in the comparison and U.S. markets. We have reviewed the selling functions Euro Plastics reported including sales forecasting, order input/processing, direct sales personnel, sales/marketing support, freight and delivery, and packing. We examined them in relation to a number of expenses Euro Plastics reported in its responses and found no discrepancies. Therefore, we determined that Euro Plastics made all comparison-market sales at one level of trade, all U.S. sales at one level of trade, and all comparison-market sales at the same level of trade as the CEP sales and EP sales. See sections 773(a)(1)(B)(i) and 773(a)(7) of the Act. See Euro Plastics Preliminary Analysis Memorandum dated July 2, 2009, for more detail.

Euro Plastics claimed a CEP offset in this review. In accordance with 19 CFR 351.412(f)(1), the Department will grant a CEP offset if normal value is compared to CEP price, normal value is at a more advanced level of trade than the CEP level of trade, and information on the record does not provide a basis to determine whether the difference in level of trade affects price comparability. Because we find that the home-market level of trade is not more advanced than the CEP level of trade and because Euro Plastics did not demonstrate that there is a difference in level of trade between the home-market and CEP sales, we have denied the claim by Euro Plastics for a CEP offset to normal value for these preliminary results. See the Euro Plastics Preliminary Analysis Memorandum dated July 2, 2009, for more detail.

Preliminary Results of the Review

As a result of our review, we preliminarily determine that the weighted-average dumping margin on PRCBs from Malaysia for the period August 1, 2007, through July 31, 2008, for Euro Plastics is 43.07 percent.

Disclosure and Public Hearing

We will disclose the calculations used in our analysis to parties to this review within five days of the date of publication of this notice. See 19 CFR 351.224(b). Any interested party may request a hearing within 30 days of the date of publication of this notice. See 19 CFR 351.310. Interested parties who wish to request a hearing or to participate in a hearing if a hearing is requested must submit a written request to the Assistant Secretary for Import Administration within 30 days of the date of publication of this notice. Requests should contain the following: (1) The party's name, address, and telephone number; (2) the number of participants; (3) a list of issues to be discussed.

Issues raised in the hearing will be limited to those raised in the case and rebuttal briefs. See 19 CFR 351.310(c). Case briefs from interested parties may be submitted not later than 30 days after the date of publication of this notice of preliminary results of review. See 19 CFR 351.309(c)(1)(ii). Rebuttal briefs from interested parties, limited to the issues raised in the case briefs, may be submitted not later than five days after the time limit for filing the case briefs or comments. See 19 CFR 351.309(d)(1) and 19 CFR 351.310(c). Any hearing, if requested, will be held two days after the scheduled date for submission of rebuttal briefs. See 19 CFR 351.310(d). Parties who submit case briefs or rebuttal briefs in this proceeding are requested to submit with each argument a statement of the issue, a summary of the arguments not exceeding five pages, and a table of statutes, regulations, and cases cited. See 19 CFR 351.309(c)(2). The Department will issue the final results of this administrative review, including the results of its analysis of issues raised in any such written briefs not later than 120 days after the date of publication of this notice. See section 751(a)(3)(A) of the Act.

Assessment Rates

The Department will determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries. With respect to EP sales, we divided the total dumping duties (calculated as the difference between normal value and EP) for each importer or customer by the total number of units Euro Plastics sold to that importer or customer. We will direct CBP to assess the resulting per-unit dollar amount against each unit of merchandise in each of that importer's/customer's entries during the review period.

For CEP sales, we divided the total dumping margins for the reviewed sales by the total entered value of those reviewed sales for each importer. We will direct CBP to assess the resulting percentage margin against the entered customs values for the subject merchandise on each of that importer's entries during the review period. See 19 CFR 351.212(b).

The Department clarified its “automatic assessment” regulation on May 6, 2003. This clarification will apply to entries of subject merchandise during the period of review produced by Euro Plastics for which it did not know its merchandise was destined for the United States. In such instances, we will instruct CBP to liquidate unreviewed entries at the all-others rate if there is no rate for the intermediate company(ies) involved in the transaction. For a full discussion of this clarification, see Antidumping and Countervailing Duty Proceedings: Assessment of Antidumping Duties, 68 FR 23954 (May 6, 2003).

We intend to issue appropriate assessment instructions directly to CBP 15 days after publication of the final results of review.

Cash-Deposit Requirements

The following deposit requirements will be effective upon publication of the notice of final results of administrative review for all shipments of PRCBs from Malaysia entered, or withdrawn from warehouse, for consumption on or after the date of publication, as provided by section 751(a)(2)(C) of the Act: (1) The cash-deposit rate for Euro Plastics will be the rate established in the final results of review; (2) for previously reviewed or investigated companies not listed above, the cash-deposit rate will continue to be the company-specific rate published for the most recent period; (3) if the exporter is not a firm covered in this review, a prior review, or the less-than-fair-value investigation but the manufacturer is, the cash-deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; (4) if neither the exporter nor the manufacturer has its own rate, the cash-deposit rate will be 84.94 percent, as established in the less-than-fair-value investigation, which is the all-others-rate for this proceeding. These deposit requirements, when imposed, shall remain in effect until further notice.

Notification to Importer

This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.

These preliminary results of administrative review are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.

Dated: July 2, 2009.

Ronald K. Lorentzen,

Acting Assistant Secretary for Import Administration.