[Federal Register Volume 75, Number 157 (Monday, August 16, 2010)]
[Notices]
[Pages 49900-49902]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-20188]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-351-841]


Polyethylene Terephthalate Film, Sheet, and Strip From Brazil: 
Preliminary Results of Antidumping Duty Administrative Review

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

SUMMARY: The Department of Commerce (the Department) is conducting an 
administrative review of the antidumping duty order on polyethylene 
terephthalate film, sheet, and strip (PET film) from Brazil. This 
administrative review covers one respondent, Terphane, Inc. (Terphane) 
and the period of review (POR) is November 6, 2008 through October 31, 
2009. Given Terphane's failure to respond to the Department's requests 
for information, we have assigned Terphane a margin based on adverse 
facts available (AFA). If these preliminary results are adopted in our 
final results of this review, we will instruct U.S. Customs and Border 
Protection (CBP) to assess antidumping duties on all appropriate 
entries of subject merchandise during the POR.
    Interested parties are invited to comment on these preliminary 
results. We intend to issue the final results no later than 120 days 
from the date of publication of this notice, pursuant to section 
751(a)(3)(A) of the Tariff Act of 1930, as amended (the Act).

DATES: Effective Date: August 16, 2010.

FOR FURTHER INFORMATION CONTACT: Deborah Scott or Robert James, AD/CVD 
Operations, Office 7, Import Administration, International Trade 
Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-
2657 or (202) 482-0649, respectively.

SUPPLEMENTARY INFORMATION: 

Background

    On November 10, 2008, the Department published the antidumping duty 
order on PET film from Brazil. See Polyethylene Terephthalate Film, 
Sheet, and Strip From Brazil, the People's Republic of China and the 
United Arab Emirates: Antidumping Duty Orders and Amended Final 
Determination of Sales at Less Than Fair Value for the United Arab 
Emirates, 73 FR 66595 (November 10, 2008). On November 2, 2009, the 
Department published Antidumping or Countervailing Duty Order, Finding, 
or Suspended Investigation; Opportunity To Request Administrative 
Review, 74 FR 56573 (November 2, 2009). On November 30, 2009, DuPont 
Teijin Films, Mitsubishi Polyester Film, Inc., SKC, Inc., and Toray 
Plastics (America), Inc. (collectively, petitioners) requested that the 
Department conduct an administrative review of Terphane's sales or 
offers for sales of PET film from Brazil made during the period 
November 6, 2008 through October 31, 2009. On December 23, 2009, the 
Department published a notice of initiation of an administrative review 
of PET film from Brazil for Terphane for the period November 6, 2008 
through October 31, 2009. See Initiation of Antidumping and 
Countervailing Duty Administrative Reviews and Request for Revocation 
in Part, 74 FR 68229 (December 23, 2009). On January 12, 2010, the 
Department issued an antidumping duty questionnaire to Terphane. On 
February 12, 2010, Terphane submitted a letter to the Department 
stating it had only one very small shipment of subject merchandise to 
the United States during the POR and that it had deposited duties on 
this merchandise at the applicable cash deposit rate. Because the value 
of the subject merchandise shipped to the United States during the POR 
was small, Terphane declared it would not be responding to the 
Department's questionnaire or otherwise participating in the 
administrative review.

Period of Review

    The POR is November 6, 2008 through October 31, 2009.

Scope of the Order

    The products covered by this order are all gauges of raw, pre-
treated, or primed PET film, whether extruded or co-extruded. Excluded 
are metallized films and other finished films that have had at least 
one of their surfaces modified by the application of a performance-
enhancing resinous or inorganic layer more than 0.00001 inches thick. 
Also excluded is roller transport cleaning film which has at least one 
of its surfaces modified by application of 0.5 micrometers of SBR 
latex. Tracing and drafting film is also excluded. PET film is 
classifiable under subheading 3920.62.00.90 of the Harmonized Tariff 
Schedule of the United States (HTSUS). While HTSUS subheadings are 
provided for convenience and customs purposes, our written description 
of the scope of these orders is dispositive.

Application of Facts Available

    Section 776(a) of the Act provides that the Department shall, 
subject to section 782(d) of the Act, apply ``the facts otherwise 
available'' if (1) necessary information is not available on the record 
of an antidumping proceeding or (2) an interested party or any other 
person: (A) Withholds information that has been requested by the 
administering authority; (B) fails to provide such information by the 
deadlines for the submission of the information or in the form and 
manner requested, subject to subsections (c)(1) and (e) of section 782 
of the Act; (C) significantly impedes a proceeding under this title; or 
(D) provides such information but the information cannot be verified as 
provided in section 782(i) of the Act.
    Where the Department determines that a response to a request for 
information does not comply with the request, section 782(d) of the Act 
provides that the Department will so inform the party submitting the 
response and will, to the extent practicable, provide that party with 
an opportunity to remedy or explain the deficiency. Section 782(d) of 
the Act further provides that if the party submits further information 
that is unsatisfactory or untimely, the Department may, subject to 
subsection (e), disregard all or part of the original and subsequent 
responses. Section 782(e) of the Act provides that the Department shall 
not decline to consider information that is submitted by an interested 
party and is necessary to the determination but does not meet all the 
applicable requirements established by the administering authority if 
the information is submitted in a timely manner, can be verified, is 
not so incomplete that it cannot be used, and the interested party 
acted to the best of its ability in providing the information. Where 
all of these conditions are met, the statute requires the Department to 
use the information supplied if it can do so without undue 
difficulties.
    In this case, Terphane did not provide a response to our request 
for

[[Page 49901]]

information and information necessary to make a determination in this 
segment of the proceeding is not on the record. In fact, Terphane 
specifically stated in its letter of February 12, 2010, that it would 
not be responding to the Department's questionnaire or otherwise 
participating in this administrative review. Thus, the Department 
preliminarily determines that necessary information is not available on 
the record to serve as the basis for the calculation of Terphane's 
margin. See section 776(a)(1) of the Act. We also preliminarily find 
that Terphane has withheld information requested by the Department and 
significantly impeded the proceeding. See section 776(a)(2)(A) and (C) 
of the Act; see also, e.g., Certain Lined Paper Products from India: 
Notice of Final Results of the First Antidumping Duty Administrative 
Review, 74 FR 17149 (April 14, 2009) and accompanying Issues and 
Decision Memorandum at Comment 2.
    Therefore, pursuant to sections 776(a)(1) and 776(a)(2)(A) and (C) 
of the Act, the Department preliminarily determines that the use of the 
facts otherwise available is warranted for Terphane. Because Terphane 
did not respond to the Department's request for information, sections 
782(d) and (e) of the Act are not applicable in this case.

Application of Adverse Facts Available and Selection of Adverse Facts 
Available Rate

    According to section 776(b) of the Act, if the Department finds an 
interested party has failed to cooperate by not acting to the best of 
its ability to comply with requests for information, the Department may 
use an inference that is adverse to the interests of that party in 
selecting from the facts otherwise available. 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. Doc. No. 103-316, vol. 1 (1994) (SAA) at 870; see 
also Notice of Final Determination of Sales at Less than Fair Value: 
Certain Frozen and Canned Warmwater Shrimp From Brazil, 69 FR 76910, 
76912 (December 23, 2004). Furthermore, ``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); see also Nippon 
Steel Corp. v. United States, 337 F.3d 1373, 1382-83 (Fed. Cir. 2003) 
(Nippon). In this case, the Department finds Terphane failed to 
cooperate to the best of its ability in this proceeding by refusing to 
respond to the Department's antidumping questionnaire and otherwise 
participate in the Department's administrative review. Therefore, since 
Terphane did not act to the best of its ability by complying with the 
Department's request for information, the Department has preliminarily 
determined an adverse inference is warranted in selecting from the 
facts otherwise available pursuant to section 776(b) of the Act. See 
Nippon, 337 F.3d at 1382-83.
    Section 776(b) of the Act provides the Department may use, as an 
adverse inference, information derived from the petition, the final 
determination in the investigation, any previous administrative review, 
or other information placed on the record. The Department's practice, 
when selecting an AFA rate from among the possible sources of 
information, has been to ensure that the margin is sufficiently adverse 
``as to effectuate the statutory purposes of the adverse facts 
available rule to induce respondents to provide the Department with 
complete and accurate information in a timely manner.'' See, e.g., 
Certain Steel Concrete Reinforcing Bars from Turkey; Final Results and 
Rescission of Antidumping Duty Administrative Review in Part, 71 FR 
65082, 65084 (November 7, 2006).
    To induce future cooperation, the Department preliminarily 
determines to assign Terphane an AFA rate of 44.36 percent. This rate 
is Terphane's cash deposit rate from the investigation and represents 
the highest margin alleged in the petition. See Notice of Final 
Determination of Sales at Less Than Fair Value: Polyethylene 
Terephthalate Film, Sheet, and Strip from Brazil, 73 FR 55035, 55036 
(September 24, 2008) (Final Determination). The Department determines 
that the selected margin will prevent Terphane from benefitting from 
its failure to cooperate with the Department's requests for 
information. Additionally, we find that this rate is reasonably high 
enough to encourage participation in future segments of the proceeding.

Corroboration of Secondary Information Used as Adverse Facts Available

    Section 776(c) of the Act provides that, where the Department 
selects from among the facts otherwise available and relies on 
``secondary information,'' the Department shall, to the extent 
practicable, corroborate that information from independent sources 
reasonably at the Department's disposal. Secondary information is 
described as ``[i]nformation derived from the petition that gave rise 
to the investigation or review, the final determination covering the 
subject merchandise, or any previous review under section 751 
concerning the subject merchandise.'' See SAA at 870. The SAA states 
that ``corroborate'' means the Department will satisfy itself that the 
secondary information to be used has probative value. Id. The SAA also 
states 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 or review. Id.
    To corroborate secondary information, the Department will, to the 
extent practicable, examine the reliability and relevance of the 
information to be used. Id. 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 calculated margins are 
administrative determinations.
    In an administrative review, if the Department chooses to use as 
facts available a petition rate which was corroborated in the less-
than-fair-value (LTFV) 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 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 (October 16, 2007). Because the 
AFA rate of 44.36 percent in this review was corroborated in the 
recently completed LTFV investigation and no information in the current 
review calls into the question of reliability of this rate, we find the 
AFA rate of 44.36 percent is reliable. See Notice of Preliminary 
Determination of Sales at Less Than Fair Value: Polyethylene 
Terephthalate Film, Sheet, and Strip from Brazil, 73 FR 24560 (May 5, 
2008), unchanged in Final Determination.
    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 
AFA, the

[[Page 49902]]

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 (Fed. Cir. 1997).
    In this review, there are no circumstances present to indicate that 
the selected margin is not appropriate as AFA. The margin we have 
selected is the margin we determined for Terphane in the LTFV 
investigation and represents the highest margin alleged in the 
petition. Moreover, because Terphane refused to respond to the 
Department's questionnaire, there is no information on the record of 
this review that demonstrates that 44.36 percent is not an appropriate 
AFA rate for Terphane. Thus, the Department considers this dumping 
margin relevant for the use of AFA for this administrative review 
because this margin is calculated based on information from the 
investigation of this proceeding.
    As the AFA rate is both reliable and relevant, we find it has 
probative value. Therefore, with the information at our disposal for 
the corroboration of this AFA rate, we find that the rate of 44.36 
percent is corroborated to the greatest extent practicable in 
accordance with section 776(c) of the Act. We preliminarily find that 
use of the rate of 44.36 percent as AFA is sufficiently high to ensure 
that Terphane does not benefit from failing to cooperate in our review 
by choosing not to respond to the Department's antidumping 
questionnaire and otherwise participate in the Department's 
administrative review.

Preliminary Results of Review

    We preliminarily determine that the following antidumping duty 
margin exists for the period November 6, 2008 through October 31, 2009:

------------------------------------------------------------------------
                                                                Margin
                     Producer/exporter                        (percent)
------------------------------------------------------------------------
Terphane, Inc..............................................        44.36
------------------------------------------------------------------------

Disclosure and Public Comment

    Interested parties may submit case briefs no later than 30 days 
after the date of publication of these preliminary results of review. 
See 19 CFR 351.309(c)(1)(ii). Rebuttal briefs, limited to issues raised 
in the case briefs, may be filed no later than five days after the time 
limit for filing the case briefs. See 19 CFR 351.309(d)(1). Parties who 
submit case or rebuttal briefs in this proceeding are requested to 
submit with each argument a statement of the issue. Parties are also 
encouraged to provide a summary of the arguments not to exceed five 
pages and a table of statutes, regulations, and cases cited. See 19 CFR 
351.309(c)(2).
    Interested parties who wish to request a hearing or to participate 
if one is requested must submit a written request to the Assistant 
Secretary for Import Administration within 30 days of publication of 
these preliminary results. See 19 CFR 351.310(c). Requests should 
contain the following information: (1) The party's name, address, and 
telephone number; (2) the number of participants; and (3) a list of the 
issues to be discussed. Issues raised in the hearing will be limited to 
those raised in the case and rebuttal briefs. Any hearing, if 
requested, will be held 37 days after the date of publication, or the 
first business day thereafter, unless the Department alters the date 
pursuant to 19 CFR 351.310(d)(1).
    The Department intends to issue the final results of this 
administrative review, which will include the results of its analysis 
of issues raised in any such comments, within 120 days of publication 
of these preliminary results, pursuant to section 751(a)(3)(A) of the 
Act.

Assessment Rates

    Upon issuance of the final results, the Department will determine, 
and CBP shall assess, antidumping duties on all appropriate entries. We 
preliminarily intend to instruct CBP to apply a dumping margin of 44.36 
percent ad valorem to PET film from Brazil that was produced and/or 
exported by Terphane and entered, or withdrawn from warehouse, for 
consumption during the POR. The Department intends to issue appropriate 
assessment instructions to CBP 15 days after the date of 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 the subject merchandise entered, or withdrawn from 
warehouse, for consumption on or after the publication date of the 
final results, as provided by section 751(a)(2)(C) of the Act: (1) The 
cash deposit rate for Terphane 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 or the LTFV 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 28.72 percent, the all-others 
rate established in the Final Determination. 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 
their responsibility under 19 CFR 351.402(f)(2) to file a certificate 
regarding the reimbursement of antidumping duties prior to liquidation 
of the relevant entries during this review period. Failure to comply 
with this requirement could result in the Secretary's presumption that 
reimbursement of antidumping duties occurred and the subsequent 
assessment of double antidumping duties.
    These preliminary results of administrative review are issued and 
published in accordance with sections 751(a)(1) and 777(i)(1) of the 
Act.

     Dated: August 9, 2010.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 2010-20188 Filed 8-13-10; 8:45 am]
BILLING CODE 3510-DS-P