[Federal Register Volume 75, Number 114 (Tuesday, June 15, 2010)]
[Notices]
[Pages 33772-33775]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-14382]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-557-813]


Polyethylene Retail Carrier Bags From Malaysia: Preliminary 
Results of Antidumping Duty Administrative Review

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

SUMMARY: At the request of interested parties, the Department of 
Commerce (the Department) is conducting an administrative review of the 
antidumping duty order on polyethylene retail carrier bags (PRCBs) from 
Malaysia. The review covers one manufacturer/exporter. The period of 
review is August 1, 2008, through July 31, 2009. We have preliminarily 
determined that sales have been made at prices below normal value by 
Euro Plastics Malaysia Sdn. Bhd. We invite interested parties to 
comment on these preliminary results. Parties who submit comments in 
this review are requested to submit with each argument a statement of 
the issue and a brief summary of the argument.

DATES: Effective Date: June 15, 2010.

FOR FURTHER INFORMATION CONTACT: Jerrold Freeman or Richard Rimlinger, 
AD/CVD Operations, Office 5, Import Administration, International Trade 
Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-
0180 or (202) 482-4477, respectively.

SUPPLEMENTARY INFORMATION:

Background

    On August 9, 2004, we published in the Federal Register the 
antidumping duty order on PRCBs from Malaysia. See Antidumping Duty 
Order: Polyethylene Retail Carrier Bags From Malaysia, 69 FR 48203 
(August 9, 2004). On August 3, 2009, we published in the Federal 
Register a notice of opportunity to request an administrative review of 
the antidumping duty order on PRCBs from Malaysia. See Antidumping or 
Countervailing Duty Order, Finding, or Suspended Investigation; 
Opportunity To Request Administrative Review, 74 FR 38397 (August 3, 
2009). Pursuant to section 751(a)(1) of the Tariff Act of 1930, as 
amended (the Act), and 19 CFR 351.213(b), the Polyethylene Retail 
Carrier Bag Committee and its individual members, Hilex Poly Co., LLC, 
and Superbag Corporation (collectively, the petitioners), and Euro 
Plastics Malaysia Sdn. Bhd. and its affiliated trading company, 
Eplastics Procurement Center Sdn. Bhd. (collectively, Euro Plastics), 
requested an administrative review of the antidumping duty order on 
PRCBs from Malaysia with respect to Euro Plastics. On September 22, 
2009, in accordance with 19 CFR 351.221(c)(1)(i), we initiated the 
administrative review of the antidumping duty order on PRCBs from 
Malaysia for the period of review. See Initiation of Antidumping and 
Countervailing Duty Administrative Reviews and Request for Revocation 
in Part, 74 FR 48224 (September 22, 2009).
    Although Euro Plastics withdrew its request for the Department to 
conduct the administrative review on October 30, 2009, the request by 
the petitioners for the Department to conduct an administrative review 
of Euro Plastics remains in effect.
    As explained in the memorandum from the Deputy Assistant Secretary 
for Import Administration, we have exercised our discretion to toll 
deadlines for the duration of the closure of the Federal Government 
from February 5 through February 12, 2010. Thus, all deadlines in this 
segment of the proceeding have been extended by seven days. See 
Memorandum to the Record from Ronald Lorentzen, DAS for Import 
Administration, regarding ``Tolling of Administrative Deadlines As a 
Result of the Government Closure During the Recent Snowstorm,'' dated 
February 12, 2010. On May 7, 2010, we extended the due date for the 
preliminary results of this administrative review to June 9, 2010. See 
Polyethylene Retail Carrier Bags From Malaysia: Extension of Time Limit 
for Preliminary Results of Antidumping Duty Administrative Review, 75 
FR 25207 (May 7, 2010).

Period of Review

    The period of review is August 1, 2008, through July 31, 2009.

Scope of the Order

    The merchandise subject to the antidumping duty order is PRCBs 
which may be referred to as t-shirt sacks, merchandise bags, grocery 
bags, or checkout bags. The subject merchandise is defined as non-
sealable sacks and bags with handles (including drawstrings), without 
zippers or integral extruded closures, with or without gussets, with or 
without printing, of polyethylene film having a thickness no greater 
than 0.035 inch (0.889 mm) and no less than 0.00035 inch (0.00889 mm), 
and with no length or width shorter than 6 inches (15.24 cm) or longer 
than 40 inches (101.6 cm). The depth of the bag may be shorter than 6 
inches (15.24 cm) but not longer than 40 inches (101.6 cm).
    PRCBs are typically provided without any consumer packaging and 
free of charge by retail establishments, e.g., grocery, drug, 
convenience, department, specialty retail, discount stores, and 
restaurants, to their customers to package and carry their purchased 
products. The scope of the order excludes (1) polyethylene bags that 
are not printed with logos or store names and that are closeable with 
drawstrings made of polyethylene film and (2) polyethylene bags that 
are packed in consumer packaging with printing that refers to specific 
end-uses other than packaging and carrying merchandise from retail 
establishments, e.g., garbage bags, lawn bags, trashcan liners.
    Imports of the subject merchandise are currently classifiable under 
statistical category 3923.21.0085 of the Harmonized Tariff Schedule of 
the United States (HTSUS). This subheading also covers products that 
are outside the scope of the order. Furthermore, although the HTSUS 
subheading is provided for convenience and customs purposes, the 
written description of the scope of the order is dispositive.

Use of Adverse Facts Available

    For the reasons discussed below, we determine that the use of 
adverse facts available is appropriate for the preliminary results with 
respect to Euro Plastics.

A. Use of Facts Available

    Section 776(a)(2) of the Act provides that, if an interested party 
withholds information requested by the administering authority, fails 
to provide such information by the deadlines for submission of the 
information and in the form or manner requested, significantly impedes 
a proceeding under this title, or provides such information but the 
information cannot be verified as provided in section 782(i) of the 
Act, the Department shall use facts otherwise available in reaching the 
applicable determination.
    On September 28, 2009, we sent our questionnaire to Euro Plastics. 
On October 30, 2009, Euro Plastics withdrew the request for the 
Department to conduct the 2008-2009 administrative review because, as 
explained in the submission, Euro

[[Page 33773]]

Plastics had been placed into receivership and no longer existed as 
operating entities. Euro Plastics stated that, because the records and 
information were in the custody of the receiver, Euro Plastics could 
not provide the information necessary to participate in this review.
    On April 27, 2010, we transmitted a supplemental questionnaire to 
Euro Plastics via FedEx. We requested that Euro Plastics clarify its 
operating status further, identify its receiver, and provide a company 
official's certification statement for the October 30, 2009, 
submission. The due date for the response to our supplemental 
questionnaire was May 5, 2010. The April 27, 2010, supplemental 
questionnaire stated that, if Euro Plastics was unable to respond by 
the deadline, it must formally request an extension of time in writing 
and provide an explanation for the request. Notwithstanding our efforts 
to assist FedEx in the delivery of this questionnaire (see June 9, 
2010, Memorandum to the File entitled ``Delivery of Supplemental 
Questionnaire''), Euro Plastics received the questionnaire on May 6, 
2010. The Department never received a response or a request for an 
extension of time from Euro Plastics.
    Because Euro Plastics did not respond to either the Department's 
original or supplemental questionnaire, we are unable to calculate a 
dumping margin for Euro Plastics. Accordingly, pursuant to sections 
776(a)(2)(A) and (B) of the Act, we must rely entirely on facts 
available.

B. Application of Adverse Inferences for Facts Available

    In selecting among the facts otherwise available, 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 an 
inference adverse to the interests of that party. In addition, the 
Statement of Administrative Action accompanying the Uruguay Round 
Agreements Act, H.R. Rep. 103-316, Vol. 1, 103d Cong. (1994), reprinted 
in 1994 U.S.C.C.A.N. 4040 (SAA), establishes that the Department may 
employ an adverse inference ``to ensure that the party does not obtain 
a more favorable result by failing to cooperate than if it had 
cooperated fully.'' See SAA at 870. The SAA also instructs the 
Department to consider, in employing adverse inferences, ``the extent 
to which a party may benefit from its own lack of cooperation.'' Id. 
Moreover, ``affirmative evidence of bad faith on the part of a 
respondent is not required before the Department may make an adverse 
inference.'' See Antidumping Duties; Countervailing Duties, Final Rule, 
62 FR 27296, 27340 (May 19, 1997).
    We find that, by failing completely to respond to our 
questionnaire, Euro Plastics withheld requested information and thus 
failed to cooperate to the best of its ability. While the Department 
may consider a company's inability to respond to questionnaires due to 
the liquidation of its assets, the Department must be satisfied that 
the record adequately demonstrates the company's inability to obtain 
the requested data. Thus, the Department has also found that a party 
has failed to act to the best of its ability where a party continues to 
produce subject merchandise but fails to provide requisite information 
to the Department. See Notice of Final Determination of Sales at Less 
Than Fair Value: Steel Wire Rod From Germany, 63 FR 8953 (February 23, 
1998). Because Euro Plastics failed to provide further information on 
its operating status, receiver, and accessibility of its books and 
records, the Department finds that Euro Plastics failed to act to the 
best of its ability and, thus, an adverse inference is warranted in 
selecting from facts otherwise available. By doing so, we ensure that 
this company will not obtain a more favorable rate by failing to 
cooperate than had it cooperated fully.

C. Selection of Information Used as Facts Available

    Where the Department applies an adverse facts-available rate 
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) 
and the SAA at 870.
    For the preliminary results, we have selected 101.74 percent as the 
adverse facts-available dumping margin for Euro Plastics. The adverse 
facts-available rate of 101.74 percent was the highest product-specific 
margin presented by the petitioners in the less-than-fair-value 
investigation of PRCBs from Malaysia. See Notice of Preliminary 
Determination of Sales at Less Than Fair Value and Postponement of 
Final Determination: Polyethylene Retail Carrier Bags from Malaysia, 69 
FR 3557 (January 26, 2004). See also Notice of Final Determination of 
Sales at Less Than Fair Value: Polyethylene Retail Carrier Bags From 
Malaysia, 69 FR 34128 (June 18, 2004) (Final Determination). We 
corroborated the information that we used to calculate the 101.74 
percent in the less-than-fair-value investigation. See Final 
Determination, 69 FR at 34129. We have selected this rate because we do 
not have any additional information about this company in this review. 
Moreover, we believe this rate is sufficiently high to ensure that Euro 
Plastics does not obtain a more favorable result by failing to 
cooperate.

D. Corroboration of Information

    Section 776(c) of the Act provides that, when the Department relies 
on secondary information as facts available, it must corroborate, to 
the extent practicable, 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 SAA 
also states that independent sources used to corroborate may include, 
for example, published price lists, official import statistics, and 
customs data as well as information obtained from interested parties 
during the particular proceeding. Id.
    To corroborate secondary information, to the extent practicable, 
the Department normally examines the reliability and relevance of the 
information to be used. See, e.g., Ball Bearings and Parts Thereof from 
France, et al.: Preliminary Results of Antidumping Duty Administrative 
Reviews and Intent to Rescind Reviews in Part, 73 FR 25654, 25657 (May 
7, 2008), unchanged in Ball Bearings and Parts Thereof From France, et 
al.: Final Results of Antidumping Duty Administrative Reviews and 
Rescission of Reviews in Part, 73 FR 52823, 52824 (September 11, 2008). 
Unlike other types of information such as input costs or selling 
expenses, there are no independent sources for calculated dumping 
margins. The only sources for antidumping duty margins are 
administrative determinations.
    Thus, with respect to an administrative review, if the Department 
chooses to use as facts available a petition rate which was 
corroborated in the less-than-fair-value investigation and no 
information has been presented in the current review that calls into 
the question of reliability of this information, the information is 
reliable. See, e.g., Certain Tissue Paper from the People's Republic of 
China: Preliminary Results and Preliminary Rescission, In

[[Page 33774]]

Part, of Antidumping Duty Administrative Review, 72 FR 17477, 17480-81 
(April 9, 2007), unchanged in Certain Tissue Paper Products from the 
People's Republic of China: Final Results and Final Rescission, In 
Part, of Antidumping Duty Administrative Review, 72 FR 58642, 58644-45 
(October 16, 2007). Because our adverse facts-available rate of 101.74 
percent in this review was corroborated in the Final Determination and 
no information in the current review calls into the question of 
reliability of this rate, we find that the adverse facts-available rate 
of 101.74 percent is reliable.
    With respect to the relevance aspect of corroboration, the 
Department will consider information reasonably at its disposal to 
determine whether a margin continues to have relevance. Where 
circumstances indicate that the selected margin is not appropriate as 
adverse facts available, the Department will disregard the margin and 
determine an appropriate margin. For example, in Fresh Cut Flowers From 
Mexico; Final Results of Antidumping Duty Administrative Review, 61 FR 
6812, 6814 (February 22, 1996), the Department disregarded the highest 
margin in that case as best information available (the predecessor to 
facts available) because the margin was based on another company's 
uncharacteristic business expense resulting in an unusually high 
margin. Similarly, the Department does not apply a margin that has been 
discredited or judicially invalidated. See D & L Supply Co. v. United 
States, 113 F.3d 1220, 1221 (CAFC 1997).
    In this review, there are no circumstances present to indicate that 
the selected margin is not appropriate as adverse facts available. 
Moreover, there is no information on the record of this review that 
demonstrates that 101.74 percent is not an appropriate adverse facts-
available rate for Euro Plastics. We examined the transaction-specific 
margins we determined for Euro Plastics in the administrative review of 
the antidumping duty order on PRCBs from Malaysia covering the period 
August 1, 2007, through July 31, 2008, and found a number of 
transaction-specific margins in our calculations which were higher than 
the adverse facts-available rate of 101.74 percent. See the June 9, 
2010, Memorandum to the File entitled ``Polyethylene Retail Carrier 
Bags From Malaysia: Placement on Record'' for details which contain 
Euro Plastics's business-proprietary information. With the information 
at our disposal for the corroboration of this adverse facts-available 
rate, we find that the rate of 101.74 percent is corroborated to the 
greatest extent practicable in accordance with section 776(c) of the 
Act.
    Because we are making an adverse inference with regard to Euro 
Plastics based on the most recent information at our disposal, we 
preliminarily find that the rate of 101.74 percent is a reasonable 
indication of the margins that Euro Plastics would have received 
concerning its U.S. transactions had it responded to our request for 
information. We preliminarily find that use of the rate of 101.74 
percent as adverse facts available is sufficiently high to ensure that 
Euro Plastics does not benefit from failing to cooperate in our review 
by refusing to respond to our questionnaire.

Preliminary Results of the Review

    As a result of our review, we preliminarily determine that the 
weighted-average dumping margin for PRCBs from Malaysia produced and/or 
exported by Euro Plastics during the period August 1, 2008, through 
July 31, 2009, is 101.74 percent.

Disclosure and Public Comment

    We will disclose the memoranda cited above and the draft 
liquidation instructions to parties to this review within five days of 
the date of publication of this notice. See 19 CFR 351.224(b). Any 
interested party may request a hearing within 30 days of the date of 
publication of this notice. See 19 CFR 351.310. Interested parties who 
wish to request a hearing or to participate in a hearing if a hearing 
is requested must submit a written request to the Assistant Secretary 
for Import Administration within 30 days of the date of publication of 
this notice. Requests should contain the following: (1) The party's 
name, address, and telephone number; (2) the number of participants; 
(3) a list of issues to be discussed.
    Issues raised in the hearing will be limited to those raised in the 
case briefs. See 19 CFR 351.310(c). Case briefs from interested parties 
may be submitted not later than 30 days after the date of publication 
of this notice of preliminary results of review. See 19 CFR 
351.309(c)(1)(ii). Rebuttal briefs from interested parties, limited to 
the issues raised in the case briefs, may be submitted not later than 
five days after the time limit for filing the case briefs or comments. 
See 19 CFR 351.309(d)(1) and 19 CFR 351.310(c). Any hearing, if 
requested, will be held two days after the scheduled date for 
submission of rebuttal briefs. See 19 CFR 351.310(d). Parties who 
submit case briefs or rebuttal briefs in this proceeding are requested 
to submit with each argument a statement of the issue, a summary of the 
arguments not exceeding five pages, and a table of statutes, 
regulations, and cases cited. See 19 CFR 351.309(c)(2).
    The Department will issue the final results of this administrative 
review, including the results of its analysis of issues raised in any 
such written briefs, not later than 120 days after the date of 
publication of this notice. See section 751(a)(3)(A) of the Act.

Assessment Rates

    Pursuant to 19 CFR 351.212(b), the Department will determine, and 
CBP shall assess, antidumping duties on all appropriate entries. 
Because we are relying on total adverse facts available to establish 
the dumping margin for Euro Plastics, we intend to instruct CBP to 
apply a dumping margin of 101.74 percent to PRCBs from Malaysia that 
were produced and/or exported by Euro Plastics and entered, or 
withdrawn from warehouse, for consumption during the period of review.
    The Department intends to issue appropriate assessment instructions 
to CBP 15 days after publication of the final results of review.

Cash-Deposit Requirements

    The following cash-deposit requirements will be effective upon 
publication of the notice of final results of administrative review for 
all shipments of PRCBs from Malaysia entered, or withdrawn from 
warehouse, for consumption on or after the date of publication, as 
provided by section 751(a)(2)(C) of the Act: (1) The cash-deposit rate 
for Euro Plastics will be the rate established in the final results of 
this review; (2) for other previously reviewed or investigated 
companies, the cash-deposit rate will continue to be the company-
specific rate published for the most recent period; (3) if the exporter 
is not a firm covered in this review, a prior review, or the less-than-
fair-value investigation but the manufacturer is, the cash-deposit rate 
will be the rate established for the most recent period for the 
manufacturer of the merchandise; (4) if neither the exporter nor the 
manufacturer has its own rate, the cash-deposit rate will be 84.94 
percent, the all-others rate established in the Notice of Final 
Determination of Sales at Less Than Fair Value: Polyethylene Retail 
Carrier Bags From Malaysia, 69 FR 34128 (June 18, 2004). These deposit 
requirements, when imposed, shall remain in effect until further 
notice.

Notification to Importers

    This notice also serves as a preliminary reminder to importers of

[[Page 33775]]

their responsibility under 19 CFR 351.402(f) to file a certificate 
regarding the reimbursement of antidumping duties prior to liquidation 
of the relevant entries during the period of review. Failure to comply 
with this requirement could result in the Department's presumption that 
reimbursement of antidumping duties occurred and the subsequent 
assessment of doubled antidumping duties.
    These preliminary results of administrative review are issued and 
published in accordance with sections 751(a)(1) and 777(i) of the Act 
and 19 CFR 351.221(b)(4).

    Dated: June 9, 2010.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 2010-14382 Filed 6-14-10; 8:45 am]
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