[Federal Register Volume 69, Number 127 (Friday, July 2, 2004)]
[Notices]
[Pages 40352-40354]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-15226]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-533-824]


Notice of Decision of the Court of International Trade: 
Polyethylene Terephthalate Film, Sheet, and Strip from India

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

ACTION: Notice of decision of the Court of International Trade.

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SUMMARY: On June 18, 2004, the Court of International Trade (CIT) 
sustained the Department of Commerce's (the Department's) 
redetermination to subject Polyplex Corporation Limited (Polyplex) to 
the antidumping duty (AD) order on Polyethylene Terephthalate Film, 
Sheet, and Strip (PET film) from India. See Dupont Teijin Films USA, 
LP, Mitsubishi Polyester Film of America,

[[Page 40353]]

LLC, and Toray Plastics (America), Inc. v. United States and Polyplex 
Corporation Limited, USCIT Slip Op. 04-70 (June 18, 2004), Court No. 
02-00463 (Dupont Teijin III). Consistent with the decision of the 
United States Court of Appeals for the Federal Circuit (Federal 
Circuit) in The Timken Company v. United States and China National 
Machinery and Equipment Import and Export Corporation, 893 F. 2d 337 
(Fed. Cir. 1990) (Timken), the Department is publishing this notice of 
the CIT's decision in Dupont Teijin III.

EFFECTIVE DATE: June 28, 2004.

FOR FURTHER INFORMATION CONTACT: Howard Smith or Jeffrey Pedersen at 
(202) 482-5193 or (202) 482-2769, respectively; AD/CVD Enforcement, 
Office 4 Import Administration, Room 1870, International Trade 
Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW, Washington, DC 20230.

SUPPLEMENTARY INFORMATION:

Background

    In the investigative stage of this proceeding, the Department 
excluded Polyplex, a company with an AD margin greater than de minimis, 
from the AD order on PET film from India based on a zero percent AD 
cash deposit rate. The Department calculated the zero percent cash 
deposit rate by reducing the AD margin by the export subsidies found in 
the companion countervailing duty (CVD) investigation. See Notice of 
Final Determination of Sales at Less Than Fair Value: Polyethylene 
Terephthalate Film, Sheet, and Strip from India, 67 Fed. Reg. 34899, 
34901 (May 16, 2002), and accompanying Issues and Decision Memorandum 
(Final Determination), as amended, 67 Fed. Reg. 44175 (July 1, 2002). 
The plaintiffs in the Court proceeding under consideration here filed a 
motion for judgement upon the agency record contesting the Department's 
final AD determination. The plaintiffs claimed that the Department 
improperly excluded Polyplex from the AD order on PET film from India 
because Polyplex's dumping margin, before adjusting the company's AD 
cash deposit rate for CVD export subsidies, is 10.34 percent. The Court 
agreed with the plaintiffs, noting that the Department cannot exclude 
an exporter from an order because its cash deposit rate is zero. See 
Dupont Teijin Films USA, LP, Mitsubishi Polyester Film of America, LLC, 
and Toray Plastics (America), Inc. v. United States and Polyplex 
Corporation Limited, 273 F. Supp. 2d 1347, 1352 (July 9, 2003) (Dupont 
Teijin I). However, because the Department accounted for CVD export 
subsidies by adjusting the AD cash deposit rate, rather than U.S. 
price, as required by 19 U.S.C. Sec.  1677a, the Court stated that 
``{u{time} pon remand, Commerce must calculate Polyplex's dumping 
margin after making the adjustments to export price required by 19 
U.S.C. Sec.  1677a and Commerce's reasonable interpretation thereof. If 
Commerce continues to calculate a dumping margin of 10.34 percent for 
Polyplex, Polyplex must be subject to the antidumping duty order ... 
.'' See Dupont Teijin I, 273 F. Supp. 2d at 1352.
    On August 11, 2003, the Department issued its Final Results of 
Redetermination Pursuant to Court Remand in which it explained that 
countervailing duties are imposed upon the issuance of a countervailing 
duty order. At the time that the Department issued its Final 
Determination, the order in the companion CVD investigation had not yet 
been issued. Thus, the Department argued that Polyplex's sales were not 
subject to a countervailing duty order. Therefore, the Department 
contended that its decision in the Final Determination not to increase 
U.S. price by the amount of the export subsidies determined in the 
companion CVD investigation is consistent with 1677a(c)(1)(C), which 
requires the Department to increase U.S. price by the amount of any 
countervailing duty imposed on the subject merchandise to offset an 
export subsidy. Because Polyplex's dumping margin, before taking into 
account export subsidies, is 10.34 percent, the Department, pursuant to 
the Court's remand order, stated that Polyplex will be subject to the 
AD order on PET film from India.
    In Dupont Teijin Films USA, LP, Mitsubishi Polyester Film of 
America, LLC, and Toray Plastics (America), Inc., v. United States and 
Polyplex Corporation Limited, 297 F. Supp. 2d 1367 (Dupont Teijin II), 
the Court sustained the Department's interpretation, upon remand, of 
the statutory phrase ``countervailing duty imposed'' in the context of 
companion AD and CVD investigations. However, the Court again remanded 
this case to the Department, instructing it to: (1)``fully address 
Polyplex's concern that petitioners could unfairly control the 
respondents' fate in an AD determination and resulting AD order by 
filing an extension and/or alignment request in the countervailing duty 
investigation;'' (2)``explain how it will ``fairly and consistently 
apply its interpretation of 'imposed' when a final determination or an 
amended final determination issues on the same day as a countervailing 
duty order on the subject merchandise due to a petitioner's alignment 
request;'' and, (3)``seek to restore the parties, as far as is 
possible, to the position they would have been had they been able to 
act on the Department's new interpretation of 'imposed,' and the 
court's determination in this matter, prior to the issuance of the 
Amended Final Determination.'' See Dupont Teijin II, 297 F. Supp. 2d at 
1374.
    On March 3, 2004, the Department issued its second Final Results of 
Redetermination Pursuant to Court Remand (Second Remand Determination) 
in which it explained that although it would likely adjust a 
respondents' U.S. prices for export subsidies when it simultaneously 
issues a final AD determination and a CVD order on the same 
merchandise, it is not permitted to amend a final AD determination to 
take into account a CVD order issued subsequent to the AD final 
determination. Thus, the Department concluded that it was unable to 
exclude Polyplex from the AD order on PET film from India. The 
Department also explained that the risk of petitioners manipulating the 
process by filing an extension and/or alignment request in the 
countervailing duty investigation ``is slight given the uncertainty of 
an investigation's final results, coupled with the extremely unusual 
circumstance present here, where a foreign producer's countervailed 
subsidies fully accounted for its less-than-fair-value sales, thereby 
reducing any AD cash deposits on its imported goods to zero.'' See 
Dupont Teijin III, Slip Op. 04-70 at 12. The Court sustained the 
Department's Second Remand Determination in its entirety.

Notification

    In its decision in Timken, the Federal Circuit held that, pursuant 
to 19 U.S.C. 1516a(e), the Department must publish notice of a CIT 
decision which is ``not in harmony'' with the Department's 
determination. The CIT's decision in Dupont Teijin III is not in 
harmony with the Department's final determination in the AD 
investigation of PET film from India. Therefore, publication of this 
notice fulfills the Department's obligation under 19 U.S.C. 1516a(e). 
In addition, this notice will serve to begin the suspension of 
liquidation pending the expiration of the period to appeal the CIT's 
June 18, 2004, decision, or, if that decision is appealed, pending a 
final decision by the Federal Circuit. The Department will instruct 
U.S. Customs and Border Protection to suspend liquidation of, and 
require a cash deposit of zero percent for, PET

[[Page 40354]]

film exported by Polyplex that is entered, or withdrawn from warehouse, 
for consumption on or after June 28, 2004.

    Dated: June 28, 2004.
Jeffrey A. May,
Acting Assistant Secretary for Import Administration.
[FR Doc. 04-15226 Filed 7-1-04; 8:45 am]
BILLING CODE 3510-DS-S