[Federal Register Volume 74, Number 211 (Tuesday, November 3, 2009)]
[Notices]
[Pages 56813-56820]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-26428]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-552-806]


Polyethylene Retail Carrier Bags From the Socialist Republic of 
Vietnam: Preliminary Determination of Sales at Less Than Fair Value and 
Postponement of Final Determination

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

DATES: Effective Date: November 3, 2009.
SUMMARY: The Department of Commerce (the ``Department'') preliminarily 
determines that polyethylene retail carrier bags (``PRCBs'') from the 
Socialist Republic of Vietnam (``Vietnam'') are being, or are likely to 
be, sold in the United States at less than fair value (``LTFV''), as 
provided in section 733 of the Tariff Act of 1930, as amended (the 
``Act''). The estimated dumping margins are shown in the Preliminary 
Determination Margins section of this notice.

FOR FURTHER INFORMATION CONTACT: Zev Primor or Shawn Higgins, AD/CVD 
Operations, Office 4, Import Administration, International Trade 
Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-
4114 and (202) 482-0679, respectively.

SUPPLEMENTARY INFORMATION: 

Background

    On March 31, 2009, the Department received a petition concerning 
imports of PRCBs from Indonesia, Taiwan, and Vietnam filed in proper 
form by Hilex Poly Co., LLC and Superbag Corporation (``Petitioners''). 
See Petition from Petitioners to the Secretary of Commerce, ``Petition 
for the Imposition of Antidumping and Countervailing Duties on 
Polyethylene Retail Carrier Bags from Indonesia, Taiwan, and the 
Socialist Republic of Vietnam'' (March 31, 2009) (``Petition''). The 
Department initiated an antidumping duty investigation of PRCBs from 
Indonesia, Taiwan, and Vietnam on April 20, 2009. See Polyethylene 
Retail Carrier Bags from Indonesia, Taiwan, and the Socialist Republic 
of Vietnam: Initiation of Antidumping Duty Investigations, 74 FR 19049 
(April 27, 2009) (``Initiation Notice'').
    On April 21, 2009, the Department requested quantity and value 
(``Q&V'') information from the 65 companies identified in the 
Petitioners' revision of a list provided in the Petition as

[[Page 56814]]

potential producers or exporters of PRCBs from Vietnam. See Letter from 
Petitioners to the Secretary of Commerce, ``Revised Exhibit II-6/III-2 
of the Petition'' (April 16, 2009); see also Letter from Robert 
Bolling, Program Manager, AD/CVD Operations, Office 4, to All 
Interested Parties, ``Antidumping Duty Investigation of Polyethylene 
Retail Carrier Bags from the Socialist Republic of Vietnam: Quantity 
and Value Questionnaire'' (April 21, 2009). The Department received 
timely responses to its Q&V questionnaire from the following 23 
companies: Advance Polybag Co., Ltd. (``API''), Fotai Vietnam 
Enterprise Corp. (``Fotai Vietnam''), Kinsplastic Vietnam Ltd. Co., 
Alpha Plastics (Vietnam) Co. Ltd., BITAHACO, Richway Plastics Vietnam 
Co., Ltd., Chin Sheng Co., Ltd., K's International Polybags Mfg., Ltd., 
Ampac Packaging Vietnam Ltd., Ontrue Plastics Co., Ltd. (Vietnam), 
Green Care Packaging Industrial (Vietnam) Co., Chung Va Century Macao 
Commercial Offshore Limited, Creative Pak Industrial Co., Ltd., An Phat 
Plastic and Packing Joint Stock Co., VN Plastic Industries Co., Ltd., 
VINAPACKINK Co., Ltd., Kong Wai Polybag Printing Company, Loc Cuong 
Trading Producing Company, Genius Development Ltd., Hanoi 27-7 Packing 
Company Limited (``HAPACK''), J.K.C. Vina Co., Ltd., Alta Company, and 
RKW Lotus Limited.\1\ Of the 65 Q&V questionnaires the Department sent 
to potential exporters/manufacturers identified in the Petition, the 
Department received 19 timely responses and two untimely responses.\2\ 
The record indicates that 55 of the 65 questionnaires sent by the 
Department were received by potential exporters/manufacturers.\3\ 
Therefore, 34 companies to which the Department sent the Q&V 
questionnaire received the questionnaire but did not respond.
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    \1\ Because VINAPACKINK Co., Ltd., VN Plastic Industries Co., 
Ltd., Kong Wai Polybag Printing Company, and Genius Development Ltd. 
were not identified in the Petition as potential producers or 
exporters of PRCBs from Vietnam, the Department did not send these 
companies Q&V questionnaires. The Department made the Q&V 
questionnaire publicly available on its Web site for producers and 
exporters of PRCB from Vietnam that were not named in teh Petition.
    \2\ Tan Hoa Loi and Nam hai Son Export Import JSC reported via 
mail and e-mal, respectively, that they did not ship PRCBs to the US 
during the period of investigation (``POI''). these responses were 
incomplete and not timely.
    \3\ Federal Express and DHL were unable to deliver the Q&V 
questionnaire to the addresses of 10 exporters/manufacturers 
provided by Petitioners.
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    On May 22, 2009, the International Trade Commission (``ITC'') 
preliminarily determined that there is a reasonable indication that an 
industry in the United States is materially injured by reason of 
imports of PRCBs from Indonesia, Taiwan, and Vietnam. See Polyethylene 
Retail Carrier Bags from Indonesia, Taiwan, and Vietnam; 
Determinations, Investigation Nos. 701-TA-462 and 731-TA-1156-1158 
(Preliminary), 74 FR 25771 (May 29, 2009).
    On May 27, 2009, the Department selected API and Fotai Vietnam as 
mandatory respondents. See Memorandum from Zev Primor, Senior 
International Trade Analyst, AD/CVD Operations, Office 4, to John M. 
Andersen, Acting Deputy Assistant Secretary for Antidumping and 
Countervailing Duty Operations, ``Selection of Respondents in the 
Antidumping Investigation of Polyethylene Retail Carrier Bags from the 
Socialist Republic of Vietnam'' (May 27, 2009) (``Respondent Selection 
Memorandum''). On May 28, 2009, the Department issued antidumping 
questionnaires to the mandatory respondents (i.e., API and Fotai 
Vietnam). API and Fotai Vietnam submitted timely responses to section A 
of the Department's antidumping questionnaire on June 25, 2009. Timely 
responses to sections C and D of the Department's antidumping 
questionnaire were submitted by API and Fotai Vietnam on July 15, 2009, 
and July 20, 2009, respectively.
    In June and July 2009, the Department received separate rate 
applications from API, Fotai Vietnam, Alpha Plastics (Vietnam) Co., 
Ltd., Alta Company, Ampac Packaging Vietnam Ltd., BITAHACO, Chin Sheng 
Co., Ltd., Chung Va Century Macao Commercial Offshore Limited, HAPACK, 
Kong Wai Polybag Printing Company, Kinsplastic Vietnam Ltd. Co., Loc 
Cuong Trading Producing Company, Ontrue Plastics Co., Ltd. (Vietnam), 
Richway Plastics Vietnam Co., Ltd., RKW Lotus Limited, VINAPACKINK Co., 
Ltd., K's International Polybags Mfg., Ltd., and VN Plastic Industries 
Co. Ltd.
    The Department issued supplemental questionnaires to, and between 
July 2009 and September 2009, received responses from API, Fotai 
Vietnam, Alpha Plastics (Vietnam) Co., Ltd., Alta Company, Ampac 
Packaging Vietnam Ltd., BITAHACO, Chin Sheng Co., Ltd., Chung Va 
Century Macao Commercial Offshore Limited, HAPACK, Kong Wai Polybag 
Printing Company, Kinsplastic Vietnam Ltd. Co., Loc Cuong Trading 
Producing Company, Ontrue Plastics Co., Ltd. (Vietnam), Richway 
Plastics Vietnam Co., Ltd., RKW Lotus Limited, VINAPACKINK Co., Ltd., 
K's International Polybags Mfg., Ltd., and VN Plastic Industries Co. 
Ltd. From July 2009 through September 2009, Petitioners submitted 
comments to the Department regarding API and Fotai Vietnam's responses 
to sections A, C, and D of the antidumping questionnaire.
    On June 9, 2009, the Department released a letter to interested 
parties which listed potential surrogate countries and invited 
interested parties to comment on surrogate country and surrogate value 
(``SV'') selection. See Letter from Robert Bolling, Program Manager, 
AD/CVD Operations, Office 4, to All Interested Parties, ``Antidumping 
Duty Investigation of Polyethylene Retail Carrier Bags from the 
Socialist Republic of Vietnam'' (June 9, 2009). During June 2009 and 
July 2009, Petitioners,\4\ API,\5\ and Fotai Vietnam \6\ submitted 
comments on the appropriate surrogate country and SVs. On August 26, 
2009, after evaluating the interested parties' comments, the Department 
selected India as the surrogate country for this investigation.\7\
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    \4\ See Letter from Petitioners to the Secretary of Commerce, 
``Polyethylene Retail Carrier Bags From Vietnam: Petitioners' 
Rebuttal Surrogate Value Submission'' (July 23, 2009); Letter from 
Petitioners to the Secretary of Commerce, ``Polyethylene Retail 
Carrier Bags From Vietnam: Initial Surrogate Value Submission'' 
(July 13, 2009); Letter from Petitioners to the Secretary of 
Commerce, ``Polyethylene Retail Carrier Bags From Vietnam: 
Petitioners' Rebuttal Comments On Surrogate Country Selection'' 
(July 7, 2009); Letter from Petitioners to the Secretary of 
Commerce, ``Polyethylene Retail Carrier Bags From Vietnam: 
Petitioners' Comments On Surrogate Country Selection'' (June 30, 
2009);
    \5\ See Letter from API to the Secretary of Commerce, 
``Antidumping Duty Investigation Involving Polyethylene Retail 
Carrier Bags from Vietnam'' (July 29, 2009); Letter from API to the 
Secretary of Commerce, ``Antidumping Duty Investigation Involving 
Polyethylene Retail Carrier Bags from Vietnam'' (July 13, 2009); 
Letter from API to the Secretary of Commerce, ``Antidumping Duty 
Investigation Involving Polyethylene Retail Carrier Bags from 
Vietnam--Surrogate Country Comments'' (June 30, 2009).
    \6\ See Letter from Fotai Vietnam to the Secretary of Commerce, 
``Polyethylene Retail Carrier Bags from the Socialist Republic of 
Vietnam'' (July 13, 2009); Letter from Fotai Vietnam to the 
Secretary of Commerce, ``Polyethylene Retail Carrier Bags from the 
Socialist Republic of Vietnam'' (June 30, 2009).
    \7\ See Memorandum from Shawn Higgins, International Trade 
Compliance Analyst, AD/CVD Operations, Office 4, to Abdelali 
Elouaradia, Office Director, AD/CVD Operations, Office 4, 
``Antidumping Duty Investigation of Polyethylene Retail Carrier Bags 
from the Socialist Republic of Vietnam: Selection of a Surrogate 
Country'' (August 26, 2009).
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    On August 7, 2009, Petitioners submitted allegations of targeted 
dumping with respect to API and Fotai Vietnam. API and Fotai Vietnam 
responded to Petitioners' targeted dumping allegations on September 2, 
2009, and August 28, 2009, respectively.
    On August 13, 2009, Petitioners made a request for a 50-day 
postponement of the preliminary determination. On August 21, 2009, the 
Department extended this preliminary

[[Page 56815]]

determination by fifty days. See Postponement of Preliminary 
Determination of Antidumping Duty Investigations: Polyethylene Retail 
Carrier Bags from Indonesia, Taiwan, and the Socialist Republic of 
Vietnam, 74 FR 42229 (August 21, 2009).
    On September 23, 2009, Fotai Vietnam notified the Department that 
it would no longer participate in this investigation. See Letter from 
Fotai Vietnam to the Secretary of Commerce, ``Polyethylene Retail 
Carrier Bags from the Socialist Republic of Vietnam'' (September 23, 
2009) (``Fotai Vietnam Withdrawal Letter''). Similarly, on October 21, 
2009, API notified the Department that it would no longer participate 
in this investigation. See Letter from API to the Secretary of 
Commerce, ``Antidumping Duty Investigation Involving Polyethylene 
Retail Carrier Bags from the Socialist Republic of Vietnam'' (October 
21, 2009) (``API Withdrawal Letter'').
    On October 19, 2009, Petitioners requested that the Department 
revise the estimated dumping margins stated in the Petition and 
calculated for purposes of initiation.\8\ However, because Petitioners' 
October 19, 2009, submission was received by the Department just eight 
days prior to the signature date of the preliminary determination, the 
Department did not have sufficient time to analyze its substance. 
Therefore, the Department will evaluate these comments in the final 
determination.
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    \8\ See Letter from Petitioners to the Secretary of Commerce, 
``Polyethylene Retail Carrier Bags From Vietnam: Petitioners' 
Comments Concerning Updates To And Further Corroboration Of The 
Estimated Margin Calculations Used By The Department For Initiation 
Of This Investigation'' (October 19, 2009).
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Period of Investigation

    The POI is July 1, 2008, through December 31, 2008. This period 
corresponds to the two most recent fiscal quarters prior to the month 
of the filing of the Petition, (i.e., March 2009). See 19 CFR 
351.204(b)(1).

Postponement of Final Determination

    Pursuant to section 735(a)(2) of the Act, on September 22, 2009, 
API requested that, in the event of an affirmative preliminary 
determination in this investigation, the Department postpone its final 
determination.\9\ On September 28, 2009, API agreed that the Department 
may extend the application of the provisional measures prescribed under 
19 CFR 351.210(e)(2) from a 4-month period to a 6-month period. In 
accordance with section 733(d) of the Act and 19 CFR 351.210(b), the 
Department is granting the request and is postponing the final 
determination until no later than 135 days after the publication of 
this notice in the Federal Register because: (1) This preliminary 
determination is affirmative, (2) the requesting exporter accounts for 
a significant proportion of exports of the subject merchandise, and (3) 
no compelling reasons for denial exist. Suspension of liquidation will 
be extended accordingly.
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    \9\ On September 17, 2009, Petitioners requested that, in the 
event of a negative preliminary determination in this investigation, 
the Department postpone its final determination.
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Scope of the Investigation

    The merchandise subject to these investigations is polyethylene 
retail carrier bags, which also may be referred to as t-shirt sacks, 
merchandise bags, grocery bags, or checkout bags. The subject 
merchandise is defined as non-sealable sacks and bags with handles 
(including drawstrings), without zippers or integral extruded closures, 
with or without gussets, with or without printing, of polyethylene film 
having a thickness no greater than 0.035 inch (0.889 mm) and no less 
than 0.00035 inch (0.00889 mm), and with no length or width shorter 
than 6 inches (15.24 cm) or longer than 40 inches (101.6 cm). The depth 
of the bag may be shorter than 6 inches 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 these investigations 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 these 
investigations 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 these investigations. Furthermore, although the HTSUS 
subheading is provided for convenience and customs purposes, the 
written description of the scope of these investigations is 
dispositive.

Scope Comments

    As explained in the preamble to the Department's regulations, the 
Department sets aside a period of time in its Initiation Notice for 
parties to raise issues regarding product coverage, and encourages all 
parties to submit comments within 20 calendar days of publication of 
that notice. See Antidumping Duties; Countervailing Duties, 62 FR 
27296, 27323 (May 19, 1997) and Initiation Notice. The Department 
received no comments regarding the scope of this investigation.

Non-Market Economy Treatment

    The Department considers Vietnam to be a non-market economy 
(``NME'') country. In accordance with section 771(18)(C)(i) of the Act, 
any determination that a country is an NME country shall remain in 
effect until revoked by the administering authority. See Certain Frozen 
Fish Fillets From the Socialist Republic of Vietnam: Notice of 
Preliminary Results of the New Shipper Review and Fourth Antidumping 
Duty Administrative Review and Partial Rescission of the Fourth 
Administrative Review, 73 FR 52015 (September 8, 2008), unchanged in 
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). The Department has not 
revoked Vietnam's status as an NME country. Therefore, in this 
preliminary determination, the Department has continued to treat 
Vietnam as an NME country and applied its current NME methodology.

Separate Rates

    In the Initiation Notice, the Department notified parties of the 
application process by which exporters and producers may obtain 
separate rate status in NME investigations. See Initiation Notice, 74 
FR at 19054-55. The process requires exporters and producers to submit 
a separate rate status application.\10\ However, the

[[Page 56816]]

standard for separate rate eligibility has not changed.
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    \10\ See Policy Bulletin 05.1: Separate-Rate Practice and 
Application of Combination Rates in Antidumping Investigations 
involving Non-Market Economy Countries, (April 5, 2005), at 6, 
available at http://ia.ita.doc.gov/policy/bull05-1.pdf. (``Policy 
Bulletin 05.1''). Policy Bulletin 05.1 states, in relevant part, 
``While continuing the practice of assigning separate rates only to 
exporters, all separate rates that the Department will now assign in 
its NME investigations will be specific to those producers that 
supplied the exporter during the period of investigation. Note, 
however, that one rate is calculated for the exporter and all of the 
producers which supplied subject merchandise to it during the period 
of investigation. This practice applied both to mandatory 
respondents receiving an individually calculated separate rate as 
well as the pool of non-investigated firms receiving the weighted-
average of the individually calculated rates. This practice is 
referred to as the application of ``combination rates'' because such 
rates apply to specific combinations of exporters and one or more 
producers. The cash-deposit rate assigned to an exporter will apply 
only to merchandise both exported by the firm in question and 
produced by a firm that supplied the exporter during the period of 
investigation.''
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    In proceedings involving NME countries, the Department has a 
rebuttable presumption that all companies within the country are 
subject to government control and thus should be assessed a single 
antidumping duty rate. It is the Department's policy to assign all 
exporters of subject merchandise in an NME country this single rate 
unless an exporter can demonstrate that it is sufficiently independent 
so as to be entitled to a separate rate. Exporters can demonstrate this 
independence through the absence of both de jure and de facto 
governmental control over export activities. The Department analyzes 
each entity exporting the subject merchandise under a test arising from 
the Notice of Final Determination of Sales at Less Than Fair Value: 
Sparklers from the People's Republic of China, 56 FR 20588 (May 6, 
1991) (``Sparklers''), as further developed in Notice of Final 
Determination of Sales at Less Than Fair Value: Silicon Carbide from 
the People's Republic of China, 59 FR 22585 (May 2, 1994) (``Silicon 
Carbide''). However, if the Department determines that a company is 
wholly foreign-owned or located in a market economy (``ME''), then a 
separate rate analysis is not necessary to determine whether it is 
independent from government control.

Separate Rate Recipients

1. Wholly Foreign-Owned
    Nine separate rate applicants in this investigation (``Foreign-
Owned SR Applicants''), provided evidence that they are wholly owned by 
individuals or companies located in MEs in their separate rate 
applications. Therefore, because they are wholly foreign-owned and the 
Department has no evidence indicating that they are under the control 
of the government of Vietnam, a separate rates analysis is not 
necessary to determine whether these companies are independent from 
government control. See Notice of Final Determination of Sales at Less 
Than Fair Value: Creatine Monohydrate from the People's Republic of 
China, 64 FR 71104 (December 20, 1999) (determining that the respondent 
was wholly foreign-owned, and thus, qualified for a separate rate). 
Accordingly, the Department has preliminarily granted a separate rate 
to these Foreign-Owned SR Applicants. See Preliminary Determination 
Margins section below for companies marked with a ``[caret]'' 
designating these companies as foreign-owned SR recipients.
2. Joint Ventures Between Vietnamese and Foreign Companies or Wholly 
Vietnamese-Owned Companies
    Five of the separate rate applicants in this investigation are 
either joint ventures between Vietnamese and foreign companies or are 
wholly Vietnamese-owned companies (collectively, ``Vietnamese SR 
Applicants''). The Department has analyzed whether each Vietnamese SR 
Applicant has demonstrated the absence of de jure and de facto 
governmental control over its respective export activities.
a. Absence of De Jure Control
    The Department considers the following de jure criteria in 
determining whether an individual company may be granted a separate 
rate: (1) An absence of restrictive stipulations associated with an 
individual exporter's business and export license; (2) legislative 
enactments decentralizing control of companies; and (3) other formal 
measures by the government decentralizing control of companies. See 
Sparklers, 56 FR at 20589.
    The evidence provided by the five Vietnamese SR Applicants supports 
a preliminary finding of de jure absence of governmental control based 
on the following: (1) An absence of restrictive stipulations associated 
with the individual exporters' business and export licenses; (2) the 
existence of applicable legislative enactments decentralizing control 
of Vietnamese companies; and (3) the implementation of formal measures 
by the government decentralizing control of Vietnamese companies.
b. Absence of De Facto Control
    Typically, the Department considers four factors in evaluating 
whether each respondent is subject to de facto governmental control of 
its export functions: (1) Whether the export prices are set by or are 
subject to the approval of a governmental agency; (2) whether the 
respondent has authority to negotiate and sign contracts and other 
agreements; (3) whether the respondent has autonomy from the government 
in making decisions regarding the selection of management; and (4) 
whether the respondent retains the proceeds of its export sales and 
makes independent decisions regarding disposition of profits or 
financing of losses. See Silicon Carbide, 59 FR at 22586-87; see also 
Notice of Final Determination of Sales at Less Than Fair Value: 
Furfuryl Alcohol From the People's Republic of China, 60 FR 22544, 
22545 (May 8, 1995). The Department has determined that an analysis of 
de facto control is critical in determining whether respondents are, in 
fact, subject to a degree of governmental control which would preclude 
the Department from assigning separate rates.
    The evidence provided by the five Vietnamese SR Applicants supports 
a preliminary finding of de facto absence of governmental control based 
on record statements and supporting documentation showing that the 
companies: (1) Set their own export prices independent of the 
government and without the approval of a government authority; (2) have 
the authority to negotiate and sign contracts and other agreements; (3) 
maintain autonomy from the government in making decisions regarding the 
selection of management; and (4) retain the proceeds of their 
respective export sales and make independent decisions regarding 
disposition of profits or financing of losses.
    In all, the evidence placed on the record of this investigation by 
the five Vietnamese SR Applicants demonstrates an absence of de jure 
and de facto government control in accordance with the criteria 
identified in Sparklers and Silicon Carbide. Accordingly, the 
Department has preliminarily granted a separate rate to the Vietnamese 
SR Applicants. See Preliminary Determination Margins section below for 
companies marked with an ``*'' designating these companies as 
Vietnamese SR recipients.
3. Wholly State-Owned Exporters/Manufacturers and Exporters/
Manufacturers Whose Stock Is Partially Owned by a Government State 
Asset Management Company
    Two of the separate rate applicants in this investigation are 
either wholly state-owned or are exporters/manufacturers whose stock is 
partially owned by a government state asset management company 
(collectively, State-Owned SR Applicants). According to HAPACK's 
Separate Rate Application, HAPACK is a state-owned enterprise, owned by 
the Hanoi People's Committee. See HAPACK's July 2, 2009, Separate Rate 
Application at 10. According to Alta Company's Separate Rate 
Application, Alta Company is partially owned by a state-owned

[[Page 56817]]

enterprise. See Alta Company's July 2, 2009, Separate Rate Application 
at 11. Absent evidence of de facto control over export activities, 
however, government ownership alone does not warrant denying a company 
a separate rate. See Lightweight Thermal Paper From the People's 
Republic of China: Final Determination of Sales at Less Than Fair 
Value, 73 FR 57329 (October 2, 2008) and the accompanying Issues and 
Decisions Memorandum at Comment 7.
    The Department preliminarily determines that the evidence placed on 
the record of this investigation by HAPACK and Alta Company 
demonstrates an absence of de facto government control of exports of 
the merchandise under investigation, in accordance with the criteria 
identified in Sparklers and Silicon Carbide. HAPACK and Alta Company 
both certified that their export prices are not set by, subject to the 
approval of, or in any way controlled by a government entity at any 
level and that they have independent authority to negotiate and sign 
export contracts, by providing price negotiation documents for their 
first U.S. sale. See, e.g., HAPACK's July 2, 2009, Separate Rate 
Application and September 28, 2009, Separate Rate Application 
Supplemental Questionnaire Response; see also Alta Company's July 2, 
2009, Separate Rate Application. HAPACK and Alta Company also stated 
that they have the right to select their own management and to decide 
how profits will be distributed. See HAPACK's July 2, 2009, Separate 
Rate Application and September 28, 2009, Separate Rate Application 
Supplemental Questionnaire Response; see also Alta Company's July 2, 
2009, Separate Rate Application. Thus, the Department preliminarily 
determines that there is an absence of both de jure and de facto 
government control with respect to both HAPACK and Alta Company. 
Accordingly, the Department has preliminarily granted a separate rate 
to the State-Owned SR Applicants. See Preliminary Determination Margins 
section below for companies marked with an ``o'' designating these 
companies as state-owned SR recipients.

Companies Not Receiving a Separate Rate

    In the Initiation Notice, the Department requested that all 
companies wishing to qualify for separate rate status in this 
investigation submit a separate rate status application. See Initiation 
Notice. The following five exporters submitted a timely response to the 
Department's Q&V questionnaire but did not provide a separate rate 
application: (1) Green Care Packaging Industrial (Vietnam) Co.; (2) 
Creative Pak Industrial Co., Ltd.; (3) An Phat Plastic and Packing 
Joint Stock Co.; (4) Genius Development Ltd.; and (5) J.K.C. Vina Co., 
Ltd., and therefore have not demonstrated their eligibility for 
separate rate status in this investigation. As a result, the Department 
is treating these Vietnamese exporters as part of the Vietnam-wide 
entity.

Margins for Separate Rate Recipients

    Normally the separate rate is determined based on the estimated 
weighted-average dumping margins established for exporters and 
producers individually investigated, excluding de minimis margins or 
margins based entirely on adverse facts available (``AFA''). See 
section 735(c)(5)(A) of the Act. If, however, the estimated weighted-
average margins for all individually investigated respondents are de 
minimis or based entirely on AFA, the Department may use any reasonable 
method. See section 735(c)(5)(B) of the Act. In this proceeding, 
because the rate for all individually investigated respondents is based 
on AFA, we have relied on information from the Petition to determine a 
rate to be applied to the respondents that have demonstrated 
entitlement to a separate rate. See, e.g., Uncovered Innerspring Units 
From the People's Republic of China: Final Determination of Sales at 
Less Than Fair Value, 73 FR 79443, 79445 (December 29, 2008). 
Specifically, we have assigned a simple average of the margins 
contained in the Petition, as adjusted by the Department for purposes 
of initiation, i.e., 52.30 percent, as the separate rate for the 
preliminary determination. Id.; see also Preliminary Determination of 
Sales at Less Than Fair Value: Raw Flexible Magnets from the People's 
Republic of China, 73 FR 22327, 22329-30 (April 25, 2008), unchanged in 
Final Determination of Sales at Less Than Fair Value: Raw Flexible 
Magnets from the People's Republic of China, 73 FR 39669, 39671 (July 
10, 2008). Entities receiving this rate are identified by name in the 
Preliminary Determination Margins section of this notice.

Use of Facts Available and Adverse Facts Available

    Section 776(a) of the Act provides that the Department shall apply 
``facts otherwise available'' if (1) necessary information is not on 
the record, or (2) an interested party or any other person (A) 
withholds information that has been requested, (B) fails to provide 
information within the deadlines established, or in the form and manner 
requested by the Department, subject to subsections (c)(1) and (e) of 
section 782 of the Act, (C) significantly impedes a proceeding, or (D) 
provides information that cannot be verified as provided by section 
782(i) of the Act.
    Section 776(b) of the Act further provides that the Department may 
use an adverse inference in applying the facts otherwise available when 
a party has failed to cooperate by not acting to the best of its 
ability to comply with a request for information. Such an adverse 
inference may include reliance on information derived from the 
Petition, the final determination, a previous administrative review, or 
other information placed on the record.

Vietnam-Wide Entity

1. Non-Responsive Companies
    On April 21, 2009, the Department requested Q&V information from 
the 65 companies identified in the Petitioners' revision of a list 
provided in the Petition as potential producers or exporters of PRCBs 
from Vietnam. Additionally, the Department's Initiation Notice informed 
these companies of the requirements to respond to both the Department's 
Q&V questionnaire and the separate rate application in order to receive 
consideration for separate rate status. However, not all exporters/
manufacturers responded to the Department's request for Q&V 
information.\11\ Furthermore, not all exporters/manufacturers that 
submitted Q&V information also submitted a separate rate 
application.\12\ Therefore, the Department preliminarily determines 
that there were exports of merchandise under review from Vietnam 
exporters/manufacturers that did not respond to the Department's Q&V 
questionnaire, and/or subsequently did not demonstrate their 
eligibility for separate rate status. As a result, the Department is 
treating these Vietnamese exporters/manufacturers (``non-responsive 
companies'') as part of the Vietnam-wide entity.
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    \11\ As stated in the Background section above, of the 65 Q&V 
questionnaires the Department sent to potential exporters identified 
in the Petition, the Department received 19 timely responses. The 
record indicates that 55 of the 65 questionnaires sent by the 
Department were received. See Respondent Selection Memorandum and 
Background section above.
    \12\ As stated in the Separate Rates section above, five 
exporters submitted a timely response to the Department's Q&V 
questionnaire but did not provide a separate rate application.
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2. Fotai Vietnam and API
    As stated above, both Fotai Vietnam and API informed the 
Department, on

[[Page 56818]]

September 23, 2009, and October 21, 2009, respectively, that they would 
no longer participate in the instant investigation. Further, Fotai 
Vietnam and API requested that the Department: (1) Remove all business 
proprietary information (``BPI'') submitted to the record of this 
investigation and (2) instruct all parties on the administrative 
protective order (``APO'') service list to certify the destruction of 
any materials served by Fotai Vietnam or API under the APO. See Fotai 
Vietnam Withdrawal Letter and API Withdrawal Letter. Additionally, API 
also requested that the Department remove its public information from 
the record. See API Withdrawal Letter. The Department, however, 
following its practice, retained public copies of submissions provided 
on behalf of API and Fotai Vietnam as part of the public record in this 
proceeding.\13\ Because both Fotai Vietnam and API have removed all of 
their BPI submitted to the record of this investigation, including 
their separate rate applications, Fotai Vietnam and API have failed to 
demonstrate that they operate free of government control and that they 
are entitled to a separate rate. Therefore, the Department 
preliminarily finds that Fotai Vietnam and API are part of the Vietnam-
wide entity.
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    \13\ See Letter from Robert Bolling, Program Manager, AD/CVD 
Operations, Office 4, to API, ``Antidumping Duty Investigation of 
Polyethylene Retail Carrier Bags from the Socialist Republic of 
Vietnam: Removal of Advance Polybag Company's Business Proprietary 
Information from the Record'' (October 27, 2009). See also, e.g., 
Letter from Richard Weible, Office Director, AD/CVD Operations, 
Office 7, to G J Steel, ``Administrative Review of Certain Hot-
Rolled Carbon Steel Flat Products from Thailand'' (April, 8, 2009).
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Application of Total Adverse Facts Available

    As noted above, the Department has determined that Fotai Vietnam, 
API, and the non-responsive companies are part of the Vietnam-wide 
entity. Pursuant to section 776(a) of the Act, the Department further 
finds that the Vietnam-wide entity failed to respond to the 
Department's questionnaires, withheld required information, and/or 
submitted information that cannot be verified, thus significantly 
impeding the proceeding. See Notice of Preliminary Determination of 
Sales at Less Than Fair Value, Affirmative Preliminary Determination of 
Critical Circumstances and Postponement of Final Determination: Certain 
Frozen Fish Fillets From the Socialist Republic of Vietnam, 68 FR 4986, 
4991 (January 31, 2003), unchanged in Notice of Final Antidumping Duty 
Determination of Sales at Less Than Fair Value and Affirmative Critical 
Circumstances: Certain Frozen Fish Fillets from the Socialist Republic 
of Vietnam, 68 FR 37116 (June 23, 2003). Accordingly, the Department 
has preliminarily determined to base the Vietnam-wide entity's margin 
on facts otherwise available. See section 776(a) of the Act. Further, 
because the Vietnam-wide entity failed to cooperate by not acting to 
the best of its ability to comply with the Department's request for 
information, the Department preliminarily determines that, when 
selecting from among the facts otherwise available, an adverse 
inference is warranted for the Vietnam-wide entity pursuant to section 
776(b) of the Act.

Selection of the Adverse Facts Available Rate

    In deciding which facts to use as AFA, section 776(b) of the Act 
and 19 CFR 351.308(c)(1) provide that the Department may rely on 
information derived from (1) the Petition, (2) a final determination in 
the investigation, (3) any previous review or determination, or (4) any 
information placed on the record. In selecting a rate for AFA, the 
Department selects a rate that is sufficiently adverse ``as to 
effectuate the purpose of the facts available rule to induce 
respondents to provide the Department with complete and accurate 
information in a timely manner.'' See Notice of Final Determination of 
Sales at Less than Fair Value: Static Random Access Memory 
Semiconductors From Taiwan, 63 FR 8909, 8932 (February 23, 1998). 
Further, it is the Department's practice to select a rate that ensures 
``that the party does not obtain a more favorable result by failing to 
cooperate than if it had cooperated fully.'' See Brake Rotors From the 
People's Republic of China: Final Results and Partial Rescission of the 
Seventh Administrative Review; Final Results of the Eleventh New 
Shipper Review, 70 FR 69937, 69939 (November 18, 2005).
    It is the Department's practice to select, as AFA, the higher of 
the (a) highest margin alleged in the Petition, or (b) the highest 
calculated rate of any respondent in the investigation. See Final 
Determination of Sales at Less Than Fair Value: Certain Cold-Rolled 
Carbon Quality Steel Products from the People's Republic of China, 65 
FR 34660 (May 31, 2000) and accompanying Issues and Decision 
Memorandum, at ``Facts Available.'' Therefore, as AFA, the Department 
has preliminarily assigned to the Vietnam-wide entity the highest 
dumping margin alleged in the Petition, as adjusted by the Department 
for initiation, which is 76.11 percent.
    The dumping margin for the Vietnam-wide entity applies to all 
entries of the merchandise under investigation except for entries of 
subject merchandise from the exporter/manufacturer combinations listed 
in the chart in the Preliminary Determination Margins section below.

Corroboration of Secondary Information

    Section 776(c) of the Act provides that, when the Department relies 
on secondary information rather than on information obtained in the 
course of an investigation or review, it shall, to the extent 
practicable, corroborate that information from independent sources that 
are reasonably at its disposal. Secondary information is defined as 
``{i{time} nformation derived from the petition that gave rise to the 
investigation or review, the final determination concerning the subject 
merchandise, or any previous review under section 751 concerning the 
subject merchandise.'' See Statement of Administrative Action, 
accompanying the Uruguay Round Agreements Act (``SAA''), H.R. Doc. No. 
103-316, Vol. 1 (1994) at 870. Corroboration means that the Department 
will satisfy itself that the secondary information to be used has 
probative value. Id. To corroborate secondary information, the 
Department will, to the extent practicable, examine the reliability and 
relevance of the information to be used. See Tapered Roller Bearings 
and Parts Thereof, Finished and Unfinished, from Japan, and Tapered 
Roller Bearings Four Inches or Less in Outside Diameter, and Components 
Thereof, from Japan; Preliminary Results of Antidumping Duty 
Administrative Reviews and Partial Termination of Administrative 
Reviews, 61 FR 57391, 57392 (November 6, 1996) (unchanged in the final 
determination) Tapered Roller Bearings and Parts Thereof, Finished and 
Unfinished, from Japan, and Tapered Roller Bearings Four Inches or Less 
in Outside Diameter, and Components Thereof, from Japan; Final Results 
of Antidumping Duty Administrative Reviews and Termination in Part, 62 
FR 11825 (March 13, 1997). 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 Notice of 
Preliminary Determination of Sales at Less Than Fair Value: High and 
Ultra-High Voltage Ceramic Station Post Insulators from Japan, 68 FR 
35627 (June 16, 2003) (unchanged in final determination) Notice of 
Final Determination of Sales at Less Than Fair Value: High and Ultra

[[Page 56819]]

High Voltage Ceramic Station Post Insulators from Japan, 68 FR 62560 
(November 5, 2003); Notice of Final Determination of Sales at Less Than 
Fair Value: Live Swine From Canada, 70 FR 12181, 12183-84 (March 11, 
2005); SAA at 870.
    Because there are no mandatory respondents, to corroborate the 
28.49 and 76.11 percent dumping margins, which were calculated for 
purposes of initiation and used to assign dumping margins to the 
companies receiving a separate rate and to the Vietnam-wide entity, we 
revisited our pre-initiation analysis of the adequacy and accuracy of 
the information in the Petition. See ``Polyethylene Retail Carrier Bags 
from the Socialist Republic of Vietnam: AD Investigation Initiation 
Checklist'' (April 20, 2009). We examined evidence supporting the 
calculations in the Petition and the supplemental information provided 
by Petitioners prior to initiation to determine the probative value of 
the margins alleged in the Petition. During our pre-initiation 
analysis, we examined the information used as the basis of export price 
(``EP'') and normal value (``NV'') in the Petition, and the 
calculations used to derive the alleged margins. Also during our pre-
initiation analysis, we examined information from various independent 
sources provided either in the Petition or, based on our requests, in 
supplements to the Petition, which corroborated key elements of the EP 
and NV calculations. Id. We received no comments as to the relevance or 
probative value of this information. Accordingly, the Department finds 
that the rates derived from the Petition and used for purposes of 
initiation have probative value for the purpose of being assigned to 
the companies receiving a separate rate and to the Vietnam-wide entity.

Combination Rates

    In the Initiation Notice, the Department stated that it would 
calculate combination rates for respondents that are eligible for a 
separate rate in this investigation. See Initiation Notice. This change 
in practice is described in Policy Bulletin 05.1, which states:

    {w{time} hile continuing the practice of assigning separate 
rates only to exporters, all separate rates that the Department will 
now assign in its NME investigations will be specific to those 
producers that supplied the exporter during the period of 
investigation. Note, however, that one rate is calculated for the 
exporter and all of the producers which supplied subject merchandise 
to it during the period of investigation. This practice applies both 
to mandatory respondents receiving an individually calculated 
separate rate as well as the pool of non-investigated firms 
receiving the weighted-average of the individually calculated rates. 
This practice is referred to as the application of ``combination 
rates'' because such rates apply to specific combinations of 
exporters and one or more producers. The cash-deposit rate assigned 
to an exporter will apply only to merchandise both exported by the 
firm in question and produced by a firm that supplied the exporter 
during the period of investigation.

Preliminary Determination Margins

    The Department preliminarily determines that the following dumping 
margins exist for the period July 1, 2008, through December 31, 
2008:\14\
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    \14\ As stated above, ``[supcaret]'' designates companies as 
foreign-owned SR recipients, ``*'' designates companies as 
Vietnamese SR recipients, and ``[ordm]'' designates companies as 
state-owned SR recipients.
    \15\ API, Fotai Vietnam, Green Care Packaging Industrial 
(Vietnam) Co., Creative Pak Industrial Co., Ltd., An Phat Plastic 
and Packing Joint Stock Co., Genius Development Ltd., and J.K.C. 
Vina Co., Ltd. are all part of the Vietnam-wide entity.

------------------------------------------------------------------------
                                                            Antidumping
          Manufacturer                   Exporter          duty percent
                                                              margin
------------------------------------------------------------------------
Alpha Plastics (Vietnam) Co.,    Alpha Plastics                    52.30
 Ltd. [supcaret].                 (Vietnam) Co., Ltd.
                                  [supcaret].
Alta Company [deg].............  Alta Company [deg].....           52.30
Ampac Packaging Vietnam Ltd.     Ampac Packaging Vietnam           52.30
 [supcaret].                      Ltd. [supcaret].
BITAHACO *.....................  BITAHACO *.............           52.30
Chin Sheng Co., Ltd. *.........  Chin Sheng Co., Ltd. *.           52.30
Chung Va (Vietnam) Plastic       Chung Va Century Macao            52.30
 Packaging Co., Ltd. [supcaret].  Commercial Offshore
                                  Limited [supcaret].
Hanoi 27-7 Packaging Company     Hanoi 27-7 Packaging              52.30
 Limited, aka Hanoi 27-7          Company Limited, aka
 Packing Company Limited, aka     Hanoi 27-7 Packing
 HAPACK Co. Ltd, aka HAPACK       Company Limited, aka
 [ordm].                          HAPACK Co. Ltd, aka
                                  HAPACK [deg].
Hoi Hung Company Limited         Kong Wai Polybag                  52.30
 [supcaret].                      Printing Company
                                  [supcaret].
Kinsplastic Vietnam Ltd. Co.     Kinsplastic Vietnam               52.30
 [supcaret].                      Ltd. Co. [supcaret].
Loc Cuong Trading Producing      Loc Cuong Trading                 52.30
 Company Limited, aka Loc Cuong   Producing Company
 Trading Producing Company, aka   Limited, aka Loc Cuong
 Loc Cuong Trading Producing      Trading Producing
 Co. Ltd. *                       Company, aka Loc Cuong
                                  Trading Producing Co.
                                  Ltd. *
Ontrue Plastics Co., Ltd.        Ontrue Plastics Co.,              52.30
 (Vietnam) [supcaret].            Ltd. (Vietnam)
                                  [supcaret].
Richway Plastics Vietnam Co.,    Richway Plastics                  52.30
 Ltd. [supcaret].                 Vietnam Co., Ltd.
                                  [supcaret].
RKW Lotus Limited Co., Ltd.,     RKW Lotus Limited Co.,            52.30
 aka RKW Lotus Limited, aka RKW   Ltd., aka RKW Lotus
 Lotus Ltd. [supcaret]            Limited, aka RKW Lotus
                                  Ltd. [supcaret]
VINAPACKINK Co., Ltd. *........  VINAPACKINK Co., Ltd. *           52.30
VN K's International Polybags    K's International                 52.30
 Joint Stock Company *.           Polybags MFG Ltd *.
VN Plastic Industries Co. Ltd.   VN Plastic Industries             52.30
 [supcaret]                       Co. Ltd [supcaret].
Vietnam-Wide Entity \15\.......  .......................           76.11
------------------------------------------------------------------------

Suspension of Liquidation

    In accordance with section 733(d) of the Act, the Department will 
instruct U.S. Customs and Border Protection (``CBP'') to suspend 
liquidation of all entries of PRCBs from Vietnam as described in the 
``Scope of Investigation'' section, entered, or withdrawn from 
warehouse, for consumption on or after the date of publication of this 
notice in the Federal Register. The Department will instruct CBP to 
require a cash deposit or the posting of a bond equal to the weighted-
average amount by which NV exceeds U.S. price, as follows: (1) The rate 
for the exporter/manufacturer combinations listed in the chart above 
will be the rate which has been determined in this preliminary 
determination; (2) for all Vietnamese exporters of subject merchandise 
which have not received their own rate, the cash-deposit rate will be 
the Vietnam-wide rate; and (3) for all

[[Page 56820]]

non-Vietnamese exporters of subject merchandise which have not received 
their own rate, the cash-deposit rate will be the rate applicable to 
the Vietnamese exporter/manufacturer combination that supplied that 
non-Vietnamese exporter. These suspension-of-liquidation instructions 
will remain in effect until further notice.

International Trade Commission Notification

    In accordance with section 733(f) of the Act, the Department has 
notified the ITC of its preliminary affirmative determination of sales 
at LTFV. Section 735(b)(2) of the Act requires the ITC to make its 
final determination as to whether the domestic industry in the United 
States is materially injured, or threatened with material injury, by 
reason of imports of PRCBs, or sales (or the likelihood of sales) for 
importation, of the subject merchandise within 45 days of the final 
determination.

Public Comment

    Case briefs or other written comments may be submitted to the 
Assistant Secretary for Import Administration no later than two weeks 
after the date of publication of this preliminary determination, and 
rebuttal briefs, limited to issues raised in case briefs, no later than 
five days after the deadline for submitting case briefs. See 19 CFR 
351.309(c)(1)(i) and 19 CFR 351.309(d)(1). A list of authorities used 
and an executive summary of issues should accompany any briefs 
submitted to the Department. This summary should be limited to five 
pages total, including footnotes.
    In accordance with section 774 of the Act, the Department 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, the Department intends to hold the 
hearing three days after the deadline of submission of rebuttal briefs 
at the U.S. Department of Commerce, 14th Street and Constitution Ave, 
NW., Washington, DC 20230, at a time and location to be determined. 
Parties should confirm by telephone the date, time, and location of the 
hearing two days before the scheduled date.
    Interested parties that wish to request a hearing, or to 
participate 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 after the date of publication of 
this notice. See 19 CFR 351.310(c). Requests should contain the party's 
name, address, and telephone number, the number of participants, and a 
list of the issues to be discussed. At the hearing, each party may make 
an affirmative presentation only on issues raised in that party's case 
brief and may make rebuttal presentations only on arguments included in 
that party's rebuttal brief.
    This determination is issued and published in accordance with 
sections 733(f) and 777(i)(1) of the Act.

    Dated: October 27, 2009.
John M. Andersen,
Acting Deputy Assistant Secretary for Antidumping and Countervailing 
Duty Operations.
[FR Doc. E9-26428 Filed 11-2-09; 8:45 am]
BILLING CODE 3510-DS-P