[Federal Register Volume 69, Number 208 (Thursday, October 28, 2004)]
[Notices]
[Pages 62850-62856]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-24094]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
[A-549-823]
Notice of Preliminary Determination of Sales at Less Than Fair
Value and Postponement of Final Determination: Bottle-Grade
Polyethylene Terephthalate (PET) Resin From Thailand
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
EFFECTIVE DATE: October 28, 2004.
FOR FURTHER INFORMATION CONTACT: Audrey Twyman or Natalie Kempkey (202)
482-3534 or (202) 482-1698, respectively; AD/CVD Operations Office I,
Import Administration, Room 1870, International Trade Administration,
U.S. Department of Commerce, 14th Street and Constitution Avenue, NW,
Washington, DC 20230.
SUPPLEMENTARY INFORMATION:
Preliminary Determination
We preliminarily determine that bottle-grade polyethylene
terephthalate resin (``PET resin'') from Thailand is being sold, or is
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''). The preliminary margin assigned to Thai Shinkong Industry
Corporation Ltd. (``Thai Shinkong'') is based on adverse facts
available (``AFA''). The estimated margins of sales at less than fair
value
[[Page 62851]]
are shown in the Suspension of Liquidation section of this notice
Interested parties are invited to comment on this preliminary
determination. Since we are postponing the final determination, we will
make our final determination not later than 135 days after the date of
publication of this preliminary determination in the Federal Register.
Petitioner
The petitioner in this investigation is the United States PET Resin
Producers Coalition (``the petitioner'').
Case History
On April 20, 2004, the Department of Commerce (``the Department'')
published the initiation of the antidumping duty investigations of
imports of PET resin from India, Indonesia, Taiwan, and Thailand. See
Notice of Initiation of Antidumping Duty Investigations: Bottle-Grade
Polyethylene Terephthalate (PET) Resin from India, Indonesia, Taiwan,
and Thailand, 69 FR 21082 (April 20, 2004) (``Initiation Notice'').
Since the initiation of the investigation, the following events have
occurred.
On May 17, 2004, the United States International Trade Commission
(``ITC'') preliminarily determined that there is a reasonable
indication that imports of the products subject to this investigation
are materially injuring an industry in the United States producing the
domestic like product. See United States International Trade Commission
Report on Polyethylene Terephthalate Resin from India, Indonesia,
Taiwan, and Thailand, Nos. 701-TA-439-440 and 731-TA-1077-1080 (May 17,
2004).
On May 10, 2004, the Department solicited comments from interested
parties in all of the concurrent PET Resin antidumping investigations,
providing an opportunity to comment on the criteria to be used for
model matching. Between May 17 and June 3, 2004, the Department
received comments and/or rebuttal comments on model matching from the
petitioner, Far Eastern Textiles, Reliance Industries Ltd., South Asian
Petrochem Ltd. and P.T. Indorama Synthetics. the Department took these
comments into consideration by the Department in developing the model
matching characteristics and hierarchy for all of the PET Resin
antidumping investigations. See June 9, 2004, memorandum to Susan
Kuhbach, Senior Office Director, ``Selection of Model Matching Criteria
for Purposes of the Antidumping Questionnaire'' (``Model Match
Memorandum'').
On May 20, 2004, the Department selected the two largest producers/
exporters of PET resin from Thailand, Bangkok Polyester Public Company
Ltd. (``Bangkok Polyester'') and Thai Shinkong, as mandatory
respondents in this investigation.\1\
---------------------------------------------------------------------------
\1\ See Memorandum to Susan Kuhbach, dated May 20, 2004,
entitled ``Antidumping Duty Investigation of Bottle-Grade
Polyethylene Teraphthalate (``PET) Resin from Thailand, Selection of
Respondents'' (``Respondent Selection Memorandum''
---------------------------------------------------------------------------
On June 9, 2004, the antidumping questionnaire \2\ was issued to
Thai Shinkong and Bangkok Polyester. During the period July through
October 2004, the Department received responses to sections A, B and C
of the Department's original and supplemental questionnaires from
Bangkok Polyester and Thai Shinkong. See the Use of Facts Otherwise
Available section of this notice regarding the Department's rejection
of Thai Shinkong's responses. On May 18, 2004, Indo Pet (Thailand) Ltd.
(``Indo Pet'') formally requested to be treated as a voluntary
respondent in this investigation in response to the Department's
invitation to do so in the Respondent Selection Memorandum. On July 26,
2004, Indo Pet withdrew its request for individual examination as a
voluntary respondent.
---------------------------------------------------------------------------
\2\ Section A of the questionnaire requests general information
concerning the company corporate structure and business practices,
the merchandise under investigation that it sells, and the manner in
which it sells that merchandise in all of its markets. Section B
requests a complete listing of all home market sales, or, if the
home market is not viable, of sales in the most appropriate third-
country market (this section is not applicable to respondents in
non-market economy cases). Section C requests a complete listing of
U.S. sales. Section D requests information on the cost of production
of the foreign like product and the constructed value of the
merchandise under investigation. Section E requests information on
further manufacturing.
---------------------------------------------------------------------------
On July 30, 2004, pursuant to 19 CFR 351.205(e), the petitioner
made a timely request to postpone the preliminary determination. We
granted this request and postponed the preliminary determination until
no later than October 20, 2004. See Notice of Postponement of
Preliminary Antidumping Duty Determinations: Bottle-Grade Polyethylene
Terephthalate (PET) Resin from India, Indonesia, Taiwan, and Thailand,
69 FR 48842 (August 11, 2004).
On August 10, 2004, the petitioner made an allegation that sales by
Bangkok Polyester in Thailand were below the cost of production
(``COP''). On August 26, 2004, pursuant to section 7773(b) of the Act,
the Department initiated a cost investigation for Bangkok Polyester's
Thailand sales of PET Resin.\3\ On August 26, 2004, the Department
issued a section D questionnaire to Bangkok Polyester. Responses to the
questionnaire and supplemental questionnaires were received in
September and October 2004.
---------------------------------------------------------------------------
\3\ See Memorandum to Susan Kuhbach, dated August 26, 2004,
entitled ``Antidumping Duty Investigation of Bottle-Grade
Polyethylene Terephthalate (PET) Resin from Thailand: United States
PET Resin Producers Coalition's Allegation of Sales Below the Cost
of Production for Bangkok Polyester Public Company Limited.''
---------------------------------------------------------------------------
On October 6, 2004, pursuant to 19 CFR 351.210(b)(2)(i), the
petitioner requested that the Department postpone the final
determination in the investigation of PET Resin from Thailand in the
event of a negative preliminary determination.
Postponement of Final Determination and Extension of Provisional
Measures
Section 735(a)(2) of the Act provides that a final determination
may be postponed until not later than 135 days after the date of the
publication of the preliminary determination if, in the event of an
affirmative preliminary determination, a request for such postponement
is made by exporters who account for a significant proportion of
exports of the subject merchandise. In accordance with 19 CFR
351.210(e)(2), the Department requires that exporters requesting
postponement of the final determination also request an extension of
the provisional measures referred to in section 733(d) of the Act from
a four-month period until not more than six months.
On September 29, 2004, we received a request to postpone the final
determination from Bangkok Polyester. In its request, Bangkok Polyester
consented to the extension of provisional measures to no longer than
six months. Since this preliminary determination is affirmative, and
the request for postponement is made by an exporter that accounts for a
significant proportion of exports of the subject merchandise, and there
is no compelling reason to deny the respondent's request, we have
extended the deadline for issuance of the final determination until the
135th day after the date of publication of this preliminary
determination in the Federal Register and have extended provisional
measures to no longer than six months.
Period of Investigation
The period of investigation (``POI'') is January 1, 2003, through
December 31, 2003. This period corresponds to the four most recent
fiscal quarters prior to the month of filing of the petition in March
2004 in accordance with 19 CFR 351.204(b)(1).
[[Page 62852]]
Scope of Investigation
The merchandise covered by this investigation is bottle-grade
polyethylene terephthalate (PET) resin, defined as having an intrinsic
viscosity of at least 0.68 deciliters per gram but not more than 0.86
deciliters per gram. The scope includes bottle-grade PET resin that
contains various additives introduced in the manufacturing process. The
scope does not include post-consumer recycle (PCR) or post-industrial
recycle (PIR) PET resin; however, included in the scope is any bottle-
grade PET resin blend of virgin PET bottle-grade resin and recycled PET
(RPET). Waste and scrap PET is outside the scope of the investigation.
Fiber-grade PET resin, which has an intrinsic viscosity of less than
0.68 deciliters per gram, is also outside the scope of the
investigation.
The merchandise subject to this investigation is properly
classified under subheading 3907.60.0010 of the Harmonized Tariff
Schedule of the United States (``HTSUS''); however, merchandise
classified under HTSUS subheading 3907.60.0050 that otherwise meets the
written description of the scope is also subject to this investigation.
Although the HTSUS subheadings are provided for convenience and customs
purposes, the written description of the merchandise under
investigation is dispositive.
Scope Comments
In accordance with the preamble to our regulations (see Antidumping
Duties; Countervailing Duties; Final Rule, 62 FR 27296, 27323 (May 19,
1997)), we set aside a period of time for parties to raise issues
regarding product coverage and encouraged all parties to submit
comments within 20 calendar days of publication of the Initiation
Notice. We did not receive any scope comments from interested parties
within the comment period.
Use of Facts Otherwise Available
Sections 776(a)(2)(A), (B), (C), and (D) of the Act provide that
the Department shall use facts available when a party withholds
information that has been requested by the administering authority
under this subtitle; does not provide the Department with information
by the established deadline or in the form and manner requested by the
Department; significantly impedes a proceeding; or provides such
information but the information cannot be verified. 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 in selecting from among the facts
available. Such adverse inference may include reliance on information
derived from: (1) The petition; (2) A final determination in the
investigation under this title; (3) Any previous review under section
751 or determination under 753; or (4) Any other information placed on
the record. See 19 CFR 351.308(c).
On June 9, 2004, the Department sent an antidumping questionnaire
to Thai Shinkong. Although Thai Shinkong did, as discussed below,
submit several questionnaire responses in July and August 2004, on
August 31, 2004, the Department informed Thai Shinkong that it was
rejecting Thai Shinkong's latest attempt to submit a response to the
Department's questionnaire because Thai Shinkong's submission was not
in compliance with the filing requirements of the statute and
regulations. See letter to Thai Shinkong from John Brinkmann dated
August 31, 2004. On the basis of our findings in this investigation,
which are detailed below, we have determined that the use of facts
otherwise available is appropriate for Thai Shinkong because it has not
provided certain information in the form and manner requested.
The Department received Thai Shinkong's first section A response on
July 1, 2004. This submission was rejected by the Department because:
(1) It was not filed by the Department's deadline of June 30, 2004; (2)
The submission was not properly bracketed and marked as either a public
or proprietary version; and (3) Thai Shinkong did not include with its
submission the correct number of copies of the public and proprietary
versions of the submission and the required certificates of service and
accuracy. The Department extended the deadline for submitting the
section A response until July 16, 2004.
Thai Shinkong resubmitted its section A response on July 16, 2004.
This submission was also rejected by the Department because: (1) It was
filed under the incorrect case number; (2) It did not contain the
correct number of proprietary versions; (3) It did not contain the
required public version of section A; (4) Bracketing of business
proprietary information was incorrectly identified both on the top of
the page and in the text of the actual document; and (5) The
Certificate of Service did not list the names of the parties on whom
the response was served. The Department further extended the deadline
for the section A response to July 26, 2004, to coincide with the due
date for Thai Shinkong's responses to sections B and C of the
questionnaire.
The Department did not receive an official submission of sections
A-C from Thai Shinkong until July 30, 2004, four days after the July 26
deadline. While the Department did receive e-mails on July 24 and 26,
2004, from Thai Shinkong with attached copies of the section A-C
submissions, e-mailing is not an acceptable format for filing
submissions. The sections A-C responses received by the Department on
July 30, 2004, had further problems with correct filing and formatting
procedures. While the Department notes that some earlier problems had
been corrected, such as filing the correct number of proprietary
versions for section A and fixing previously noted bracketing errors,
we noted that there were still several consistent errors with the
filing of sections A-C: (1) There was no cover page to each section (A,
B or C) identifying the case number and whether the attached section
was public or proprietary; (2) The Certificates of Service and Accuracy
were not provided; (3) Only one copy each of both the public version
and proprietary version of Thai Shinkong's responses were submitted to
the Department for sections B and C; (4) Page C-32 of what appears to
be the public version of section C contained bracketed proprietary
information; and (5) The required electronic databases for sections B
and C sales were not submitted.
On August 4, 2004, the Department advised Thai Shinkong that it was
rejecting Thai Shinkong's July 30, 2004, sections A-C submission as
improperly filed, and that it would not be able to consider a revised
response in the preliminary determination, then scheduled for August
31, 2004. The Department also informed Thai Shinkong that it would not
be able to consider a revised response in the final determination
unless received by August 16, 2004. The Department's August 4 letter
did note that if the preliminary determination were to be postponed, it
may be possible for the Department to consider Thai Shinkong's factual
information in that postponed preliminary determination, if any factual
information was properly filed with the Department no later than August
16, 2004.
On August 13, 2004, the Department received a timely submission of
the sections A-C response from Thai Shinkong. Since the Department had
extended the preliminary determination on August 11, 2004, to October
20, 2004,
[[Page 62853]]
the Department reviewed Thai Shinkong's August 13, 2004, submission for
consideration in the extended preliminary determination. While this
submission appeared to have corrected some of the filing and bracketing
problems previously identified by the Department, several filing
problems still remained. Most significantly, while Thai Shinkong did
certify that the public version of sections A-C was served to those
parties on the administrative protective order service list, it failed
to certify that the proprietary version had been served to the parties
on that list. The Department was also unable to ascertain by what means
these parties had been served, i.e., first class mail or express mail.
On August 16, 2004, the Department sent an e-mail to Thai Shinkong
inquiring whether the parties on the APO service list had been served
with the August 13 submission and how these documents were sent.\4\ The
Department received an e-mail response \5\ from Thai Shinkong on August
23, 2004, in which Thai Shinkong stated that it only sent the public
version of the response to interested parties because its proprietary
version contained confidential information. It stated that for that
reason, Thai Shinkong only provided the public version of its August
13, 2004, submission to the parties. Thai Shinkong also asserted that
it sent the public version of that submission to the petitioner.
However, we note that as of August 26, 2004, the petitioner stated it
had not received any service of Thai Shinkong's sections A-C response.
On August 31, 2004, the Department advised Thai Shinkong that it was
rejecting Thai Shinkong's August 13, 2004, submission because of its
failure to serve parties on the administrative protective order service
list with a proprietary version of the response. The Department also
advised Thai Shinkong that it was unable to further extend the deadline
for filing the questionnaire responses due to the statutorily mandated
deadlines that govern the investigation.
---------------------------------------------------------------------------
\4\ See Memo to File dated August 23, 2004, entitled ``Bottle
Grade Polyethylene Terephthalate (PET) Resin from Thailand: E-mail
Regarding Sections A-C Submissions.''
\5\ See Id.
---------------------------------------------------------------------------
The Department is applying facts available to calculate a dumping
margin for Thai Shinkong because Thai Shinkong failed to serve the
Proprietary Version of its most recent submission on parties to this
proceeding that were authorized to receive this information under an
administrative protective order. By failing to provide this information
to the interested parties, Thai Shinkong has not provided the requested
information in the form and manner requested by the Department's August
16 due date for filing factual information. As a consequence, the
petitioner would not have had adequate time to conduct its own analysis
and submit comments on Thai Shinkong's factual submission. Moreover,
the Department was unable to further extend the filing deadline because
there was no longer sufficient time to evaluate interested party
comments on Thai Shinkong's response, follow-up with supplemental
questions, and conduct a margin analysis by the October 20, 2004,
preliminary determination. Therefore, we determine that the
Department's calculation of an antidumping margin for Thai Shinkong
should be based on facts otherwise available, in accordance with
section 776(a)(2) of the Act.
In applying facts otherwise available, section 776(b) of the Act
provides that the Department may use an inference adverse to the
interests of a party that has failed to cooperate by not acting to the
best of its ability to comply with the Department's requests for
information. See, e.g., Notice of Final Determination of Sales at Less
Than Fair Value and Final Negative Critical Circumstances: Carbon and
Certain Alloy Steel Wire Rod from Brazil, 67 FR 55792, 55794-96 (August
30, 2002). Adverse inferences are appropriate ``to ensure that the
party does not obtain a more favorable result by failing to cooperate
than if it had cooperated fully.'' See Statement of Administrative
Action accompanying the Uruguay Round Agreements Act, H.R. Rep. No.
103-316, at 870 (1994) (``SAA''). Furthermore, ``{a{time} ffirmative
evidence of bad faith on the part of a respondent is not required
before the Department may make an adverse inference.'' See Antidumping
Countervailing Duties: Final Rule, 62 FR 27296, 27340 (May 19, 1997).
We find that the application of adverse facts available is
appropriate because Thai Shinkong has failed to comply with the
Department's requests for information and has not acted to the best of
its ability. After each of the submissions by Thai Shinkong, the
Department sent a detailed letter to Thai Shinkong, which not only
specified the deficiencies in the filing, but also provided examples
and citations to appropriate sources for rectifying the deficiencies.
Filing deadlines were also extended to the maximum extent practicable.
However, as described in detail above, each subsequent filing by Thai
Shinkong contained significant deficiencies that caused the Department
to reject each submission. Therefore, we find that, despite being
provided ample opportunities to do so, by not remedying the
deficiencies in its responses, Thai Shinkong failed to act to the best
of its ability to provide the information requested by the Department.
Where the Department applies adverse facts available because a
respondent failed to cooperate by not acting to the best of its ability
to comply with a request for information, section 776(b) of the Act
authorizes the Department to rely on information derived from the
petition, a final determination, a previous administrative review, or
other information placed on the record. See also 19 CFR 351.308(c); SAA
at 829-831. Because there are no prior administrative reviews and no
other information has been placed on the record, as adverse facts
available, we are assigning Thai Shinkong the higher of: (1) The
highest margin listed in the notice of initiation; or (2) The margin
calculated for any respondent in this investigation.
For adverse facts available, we have selected the margin from the
petition, since the margin derived from information in the petition
exceed the margin calculated for the mandatory respondent. When using
facts otherwise available, section 776(c) of the Act provides that,
when the Department relies on secondary information (such as the
petition) in using facts otherwise available, it must, to the extent
practicable, corroborate that information from independent sources that
are reasonably at its disposal. The SAA clarifies that ``corroborate''
means that the Department will satisfy itself that the secondary
information to be used has probative value. See SAA at 870. The
Department's regulations state that independent sources used to
corroborate such evidence may include, for example, published price
lists, official import statistics and customs data, and information
obtained from interested parties during the particular investigation.
See 19 CFR 351.308(d); see also SAA at 870. As discussed in the October
20, 2004, memorandum from Susan Kuhbach, Senior Office Director to
Jeffrey May, Deputy Assistant Secretary, ``Preliminary Determination of
Polyethylene Terephthalate (``PET'') Resin from Thailand: Corroboration
Memorandum'' (``Corroboration Memorandum'') regarding the corroboration
of facts available, we find that the margin of 41.28 percent has
probative value. Accordingly, we find that the highest margin, based on
petition information and adjusted as
[[Page 62854]]
described in the Corroboration Memorandum, of 41.28 percent is
corroborated within the meaning of section 776(c) of the Act.
Product Comparisons
In accordance with section 771(16) of the Act, all products
produced by the respondents covered by the description in the Scope of
Investigation section, above, and sold in Thailand during the POI, are
considered to be foreign like products for purposes of determining
appropriate product comparisons to U.S. sales. We have relied on four
criteria to match U.S. sales of subject merchandise to comparison-
market sales of the foreign like product: Intrinsic viscosity, blend,
copolymer/homopolymer, and additives. See Model Match Memorandum. Where
there were no sales of identical merchandise in the home market to
compare to U.S. sales, we compared U.S. sales to the next most similar
foreign like product on the basis of the characteristics listed above.
Fair Value Comparisons
To determine whether sales of PET resin from Thailand were made in
the United States at less than fair value (``LTFV''), we compared the
export price (``EP'') to the normal value (``NV''), as described in the
Export Price and Normal Value sections of this notice. In accordance
with section 777A(d)(1)(A)(I) of the Act, we calculated weighted-
average EPs. We compared these to weighted-average home market prices
in Thailand. For Bangkok Polyester, we compared all U.S. and home
market sales made during the POI, based on the date of issuance of
Bangkok Polyester's invoices. We determined this to be the appropriate
date of sale because, based on the description of the sales process
provided by Bangkok Polyester, the quantity, sales price, and product
specifications were frequently renegotiated after the purchase order.
Export Price
For Bangkok Polyester's price to the United States, we used EP.
Section 772(a) of the Act defines EP as the price at which the subject
merchandise is first sold before the date of importation by the
producer or exporter outside of the United States to an unaffiliated
purchaser in the United States or to an unaffiliated purchaser for
exportation to the United States, as adjusted under subsection 722(c)
of the Act. We calculated Bangkok Polyester's EP based on the packed
prices charged to the first unaffiliated customer in the United States.
These sales are properly classified as EP sales because they were made
outside the United States by the exporter or producer to unaffiliated
customers in the United States prior to the date of importation.
In accordance with section 772(c)(2) of the Act, we made deductions
from the starting price for movement expenses where appropriate. These
included inland freight and brokerage and handling fees. In accordance
with section 772(c)(1)(B) of the Act, we have preliminarily added to
the starting price the amount of import duties imposed by the
Government of Thailand that were rebated upon export of the subject
merchandise to the United States. We will verify the terms and
conditions of this duty drawback claim for the final determination.
Normal Value
A. Selection of Comparison Markets
Section 773(a)(1) of the Act directs that NV be based on the price
at which the foreign like product is sold in the home market, provided
that the merchandise is sold in sufficient quantities (or value, if
quantity is inappropriate), that the time of the sales reasonably
corresponds to the time of the sale used to determine EP, and that
there is no particular market situation that prevents a proper
comparison with the EP or CEP. The statute contemplates that quantities
(or value) will normally be considered insufficient if they are less
than five percent of the aggregate quantity (or value) of sales of the
subject merchandise to the United States.
We found that Bangkok Polyester had a viable home market for PET
resin. As such, Bangkok Polyester submitted home market sales data for
purposes calculating NV.
In deriving NV, we made adjustments as detailed in the Calculation
of Normal Value Based on Home Market Prices section, below.
B. Cost of Production Analysis
Based on allegations contained in the petitioner's August 10, 2004,
sales-below-cost allegation with respect to Bangkok Polyester (See
August 10, 2004, letter from the petitioner, ``Bangkok Polyester Public
Company Limited Sales Below Cost Allegation''), and in accordance with
section 773(b)(2)(A)(i) of the Act, we found reasonable grounds to
believe or suspect that PET resin sales were made in Thailand at prices
below the cost of production (``COP''). See August 26, 2004, memorandum
to Susan Kubach, Senior Office Director, ``Petitioner's Allegation of
Sales Below the Cost of Production for Bangkok Polyester Public Company
Limited.'' As a result, the Department has conducted an investigation
to determine whether Bangkok Polyester made home market sales at prices
below their respective COPs during the POI within the meaning of
section 773(b) of the Act. We conducted the COP analysis described
below.
1. Calculation of Cost of Production
In accordance with section 773(b)(3) of the Act, we calculated a
weighted-average COP based on the sum of the cost of materials and
fabrication for the foreign like product, plus amounts for the home
market general administrative (``G&A'') expenses, including interest
expenses, and packing expenses. We relied on the COP data submitted by
Bangkok Polyester in its cost questionnaire response, with the
following adjustments: (1) We revised the financial expense ratio to
include the net exchange gains; (2) For both the G&A and financial
expense ratios, we subtracted Bangkok Polyester's packing expenses from
the cost of goods sold denominator. See ``Bangkok Polyester Cost
Calculation Memorandum,'' from Gina Lee to Neal Halper, dated October
20, 2004.
2. Test of Home Market Sales Prices
We compared the adjusted weighted-average COP for Bangkok Polyester
to its home-market sales prices of the foreign like product, as
required under section 773(b) of the Act, to determine whether these
sales had been made at prices below the COP within an extended period
of time (i.e., a period of one year) in substantial quantities and
whether such prices were sufficient to permit the recovery of all costs
within a reasonable period of time.
On a model-specific basis, we compared the revised COP to the home
market prices, less any applicable movement charges, and direct and
indirect selling expenses (which were also deducted from COP).
3. Results of the COP Test
Where 20 percent or more of a respondent's sales of a given product
during the POI were at prices less than the COP, we determined such
sales to have been made in ``substantial quantities'' within an
extended period of time in accordance with section 773(b)(2)(B) of the
Act. In such cases, because we compared prices to POI average costs,
pursuant to section 773(b)(2)(D) of the Act, we also determined that
such sales were not made at prices that would permit recovery of all
costs within a reasonable period of time. Therefore, we disregarded
these home-market sales for Bangkok Polyester.
[[Page 62855]]
C. Level of Trade
Section 773(a)(1)(B)(i) of the Act states that, to the extent
practicable, the Department will calculate NV based on sales at the
same level of trade (``LOT'') as the EP or CEP. Sales are made at
different LOTs if they are made at different marketing stages (or their
equivalent). See 19 CFR 351.412(c)(2). Substantial differences in
selling activities are a necessary, but not sufficient, condition for
determining that there is a difference in the stages of marketing. Id.;
see also Notice of Final Determination of Sales at Less Than Fair
Value: Certain Cut-to-Length Carbon Steel Plate From South Africa, 62
FR 61731, 61732 (November 19, 1997). In order to determine whether the
comparison sales were at different stages in the marketing process than
the U.S. sales, we reviewed the distribution system in each market
(i.e., the ``chain of distribution''),\6\ including selling
functions,\7\ class of customer (``customer category''), and the level
of selling expenses for each type of sale.
---------------------------------------------------------------------------
\6\ The marketing process in the United States and home market
begins with the producer and extends to the sale to the final user
or customer. The chain of distribution between the two may have many
or few links, and the respondents' sales occur somewhere along this
chain. In performing this evaluation, we considered each
respondent's narrative response to properly determine where in the
chain of distribution the sale occurs.
\7\ Selling functions associated with a particular chain of
distribution help us to evaluate the level(s) of trade in a
particular market. For purposes of these preliminary results, we
have organized the common selling functions into four major
categories: sales process and marketing support, freight and
delivery, inventory and warehousing, and quality assurance/warranty
services.
---------------------------------------------------------------------------
Pursuant to section 773(a)(1)(B)(i) of the Act, in identifying
levels of trade for EP and comparison market sales (i.e., NV based on
either home market or third country prices,) \8\ we consider the
starting prices before any adjustments. For CEP sales, we consider only
the selling expenses reflected in the price after the deduction of
expenses and profit under section 772(d) of the Act. See Micron
Technology, Inc. v. United States, 243 F.3d 1301, 1314-1315 (Fed. Cir.
2001).
---------------------------------------------------------------------------
\8\ Where NV is based on CV, we determine the NV LOT based on
the LOT of the sales from which we derive selling expenses, G&A and
profit for CV, where possible.
---------------------------------------------------------------------------
When the Department is unable to match U.S. sales to sales of the
foreign like product in the comparison market at the same LOT as the EP
or CEP, the Department may compare the U.S. sale to sales at a
different LOT in the comparison market. In comparing EP or CEP sales at
a different LOT in the comparison market, where available data make it
practicable, we make an LOT adjustment under section 773(a)(7)(A) of
the Act. Finally, for CEP sales only, if an NV LOT is more remote from
the factory than the CEP LOT and we are unable to make a LOT
adjustment, the Department shall grant a CEP offset, as provided in
section 773(a)(7)(B) of the Act. See Notice of Final Determination of
Sales at Less Than Fair Value: Certain Cut-to-Length Carbon Steel Plate
from South Africa, 62 FR 61731 (November 19, 1997).
In conducting our LOT analysis for Bangkok Polyester, we examined
the specific types of customers, the channels of distribution, and the
company selling practices. Generally, if the reported LOTs are the
same, the functions and activities of the seller should be similar.
Conversely, if a party reports LOTs that are different for different
categories of sales, the functions and activities may be dissimilar.
We found the following:
Bangkok Polyester reported that it sells PET resin to trading
companies and converters (end users) in the home market, and to
distributors in the United States. Bangkok Polyester claims that the
selling function it performs are limited and do not materially differ
among channels of trade or between the U.S. and home market. We
examined the information reported by Bangkok Polyester and found that
home market sales in both channels of distribution were similar with
respect to sales process, freight services, warehouse/inventory
maintenance, advertising activities, technical service, and warranty
service. Accordingly, we preliminarily find that Bangkok Polyester had
only one LOT for its home market sales.
Bangkok Polyester made only EP sales to the United States during
the POI. All of Bangkok Polyester's EP sales were made through the same
channel of distribution (i.e., sales from the manufacturer to
distributors). The EP selling activities do not differ significantly
from the home market selling activities. Therefore, we find that the
U.S. LOT is similar to the home market LOT and a LOT adjustment is not
appropriate. See section 773(a)(7)(A) of the Act.
D. Calculation of Normal Value Based on Home Market Prices
We determined NV for Bangkok Polyester as follows. We made
adjustments for any differences in packing and deducted home market
movement expenses pursuant to sections 773(a)(6)(A) and
773(a)(6)(B)(ii) of the Act. We also adjusted home market prices, where
appropriate, by adding or subtracting billing adjustments to home
market prices. In addition, where applicable in comparison to EP
transactions, we made adjustments for differences in circumstances of
sale (COS) pursuant to section 773(a)(6)(C)(iii) of the Act. We made
COS adjustments for Bangkok Polyester's EP transactions by deducting
direct selling expenses incurred for home market sales (i.e., credit
expense) and adding U.S. direct selling expenses (i.e., credit
expenses).
Currency Conversions
We made currency conversions into U.S. dollars in accordance with
section 773A of the Act based on exchange rates in effect on the dates
of the U.S. sale, as obtained from the Federal Reserve Bank (the
Department's preferred source for exchange rates).
Verification
In accordance with section 782(i) of the Act, we intend to verify
all information relied upon in making our final determination for
Bangkok Polyester.
Suspension of Liquidation
In accordance with section 733(d)(2) of the Act, we are directing
the U. S. Customs and Border Protection (``CBP'') to suspend
liquidation of all entries of PET resin from Thailand, that are
entered, or withdrawn from warehouse, for consumption on or after the
date of publication of this notice in the Federal Register. We are also
instructing CBP to require a cash deposit or the posting of a bond
equal to the weighted-average dumping margin as indicated in the chart
below. These instructions suspending liquidation will remain in effect
until further notice.
------------------------------------------------------------------------
Weighted-
average
Producer/exporter margin
(percentage)
------------------------------------------------------------------------
Bangkok Polyester Public Company, Ltd..................... 26.03
Thai Shinkong Industry Corporation, Ltd................... 41.28
All Others................................................ 26.03
------------------------------------------------------------------------
Disclosure
The Department will disclose calculations performed within five
days of the date of publication of this notice to the parties in this
proceeding in accordance with 19 CFR 351.224(b).
International Trade Commission Notification
In accordance with section 733(f) of the Act, we have notified the
ITC of the Department's preliminary affirmative determination. If the
final determination
[[Page 62856]]
in this proceeding is affirmative, the ITC will determine before the
later of 120 days after the date of this preliminary determination or
45 days after the final determination whether imports of PET resin from
Thailand are materially injuring, or threaten material injury to, the
U.S. industry.
Public Comment
Interested parties are invited to comment on the preliminary
determination. Interested parties may submit case briefs by the later
of 50 days after the date of publication of this notice or one week
after the issuance of the verification reports. See 19 CFR
351.309(c)(1)(I). Rebuttal briefs, the content of which is limited to
the issues raised in the case briefs, must be filed within five days
after the deadline for the submission of case briefs. See 19 CFR
351.309(d). A list of authorities used, a table of contents, and an
executive summary of issues should accompany any briefs submitted to
the Department. Executive summaries should be limited to five pages
total, including footnotes. Further, we request that parties submitting
briefs and rebuttal briefs provide the Department with a copy of the
public version of such briefs on diskette.
In accordance with section 774 of the Act, we will hold a public
hearing, if requested, to afford interested parties an opportunity to
comment on arguments raised in case or rebuttal briefs. If a request
for a hearing is made, we will tentatively hold the hearing two days
after the deadline for submission of rebuttal briefs at the U.S.
Department of Commerce, 14th Street and Constitution Avenue, NW.,
Washington, DC 20230, at a time and in a room to be determined. Parties
should confirm by telephone the date, time, and location of the hearing
48 hours before the scheduled date.
Interested parties who wish to request a hearing, or to participate
in a hearing if one is requested, must submit a written request to the
Assistant Secretary for Import Administration, U.S. Department of
Commerce, Room 1870, within 30 days of the date of publication of this
notice. Requests should contain: (1) The party's name, address, and
telephone number; (2) The number of participants; and (3) A list of the
issues to be discussed. At the hearing, oral presentations will be
limited to issues raised in the briefs. See 19 CFR 351.310(c).
The Department will make its final determination no later than 135
days after the date of publication of this preliminary determination.
This determination is issued and published pursuant to sections
733(f) and 777(i)(1) of the Act.
Dated: October 20, 2004.
James J. Jochum,
Assistant Secretary for Import Administration.
[FR Doc. 04-24094 Filed 10-27-04; 8:45 am]
BILLING CODE 3510-DS-P