Polyethylene Terephthalate Film, Sheet, and Strip from the United Arab Emirates: Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination, 24547-24552 [E8-9844]
Download as PDF
Federal Register / Vol. 73, No. 87 / Monday, May 5, 2008 / Notices
final results of this review; 2) for
previously reviewed or investigated
companies not covered in this review,
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
(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 subject merchandise; and 4) if
neither the exporter nor the
manufacturer is a firm covered in this or
any previous segment of the proceeding,
the cash–deposit rate will continue to be
the all–others rate established in the
LTFV investigation, which is 21.01
percent. See Antidumping Duty Order.
These cash–deposit requirements, when
imposed, shall remain in effect until
further notice.
Notification to Importers
This notice 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.
The preliminary results of this
administrative review and this notice
are issued and
published in accordance with sections
751(a)(1) and 777(i)(1) of the Act.
Dated: April 29, 2008.
David M. Spooner,
Assistant Secretary for Import
Administration.
[FR Doc. E8–9889 Filed 5–2–08; 8:45 am]
BILLING CODE 3510–DS–S
DEPARTMENT OF COMMERCE
International Trade Administration
(A–520–803)
rfrederick on PROD1PC67 with NOTICES
Polyethylene Terephthalate Film,
Sheet, and Strip from the United Arab
Emirates: Preliminary Determination of
Sales at Less Than Fair Value and
Postponement of Final Determination
Import Administration,
International Trade Administration,
Department of Commerce.
SUMMARY: The U.S. Department of
Commerce (the Department)
preliminarily determines that
AGENCY:
VerDate Aug<31>2005
16:13 May 02, 2008
Jkt 214001
Polyethylene Terephthalate Film, Sheet,
and Strip (PET Film) from the United
Arab Emirates (UAE) is being, or is
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
margins of sales at LTFV are listed in
the ‘‘Preliminary Determination’’
section of this notice. Interested parties
are invited to comment on this
preliminary determination. Pursuant to
a request from an interested party, we
are postponing our final determination
to not later than 135 days after
publication of the preliminary
determination.
EFFECTIVE DATE: May 5, 2008.
FOR FURTHER INFORMATION CONTACT:
Douglas Kirby or Myrna Lobo, AD/CVD
Operations, Office 6, Import
Administration, International Trade
Administration, U.S. Department of
Commerce, 14th Street and Constitution
Avenue, NW, Washington, DC 20230;
telephone: (202) 482–3782 or (202) 482–
2371, respectively.
SUPPLEMENTARY INFORMATION:
Background
This investigation was initiated on
October 18, 2007. See Polyethylene
Terephthalate Film, Sheet, and Strip
(PET Film) from Brazil, the People’s
Republic of China, Thailand, and the
United Arab Emirates: Initiation of
Antidumping Duty Investigations
(Notice of Initiation), 72 FR 60801
(October 26, 2007). On November 13,
2007, the United States International
Trade Commission (ITC) preliminarily
determined that, pursuant to section
733(a) of the Act, there is a reasonable
indication that an industry in the
United States is materially injured by
reason of imports of PET Film from
Brazil, China, Thailand, and the United
Arab Emirates. See Investigation Nos.
731–TA–1131–1134 (Preliminary):
Polyethylene Terephthalate Film, Sheet,
and Strip from Brazil, China, Thailand,
and the United Arab Emirates, 72 FR
67756 (November 13, 2007) (ITC
Preliminary Determination). The
domestic interested parties are DuPont
Teijin Films, Mitsubishi Polyester Film
of America, Inc., SKC, Inc. and Toray
Plastics (America), Inc. (collectively, the
petitioners). The respondent for this
investigation is Flex Middle East FZE
(Flex FZE).
On November 27, 2007, the
Department issued its sections A
through E questionnaires to Flex FZE.
On December 19, 2007, Flex FZE
submitted its section A response. On
January 18, 2008, Flex FZE submitted its
sections B and C responses. On January
PO 00000
Frm 00018
Fmt 4703
Sfmt 4703
24547
23, 2008, the petitioners made a timely
request pursuant to section 733(c)(1) of
the Act and 19 CFR 351.205(e) for a
postponement of the preliminary
determinations with respect to Brazil,
the People’s Republic of China,
Thailand, and the United Arab Emirates.
See Polyethylene Terephthalate Film,
Sheet, and Strip from Brazil, the
People’s Republic of China, Thailand,
and the United Arab Emirates:
Postponement of Preliminary
Determinations of Antidumping Duty
Investigations, 73 FR 7710 (February 11,
2008).
On February 6, 2008, the petitioners
submitted a timely allegation that home
market sales were being made at prices
below the cost of production and
requested that the Department initiate a
sales–below-cost investigation of Flex
FZE pursuant to 19 CFR
351.301(d)(2)(B). On February 8, 2008,
the Department issued its first
supplemental questionnaire to Flex
FZE. On February 27, 2008, Flex FZE
submitted its response to the first
supplemental questionnaire. On
February 29, 2008, the Department
issued a second supplemental
questionnaire to Flex FZE. On February
29, 2008, the Department initiated a
sales–below-cost–investigation of Flex
FZE and requested that Flex FZE
respond to the section D questionnaire.
See Memorandum to Barbara E.
Tillman, Director, AD/CVD Operations,
Office 6, from the Team, Petitioners’
Allegation of Sales Below the Cost of
Production for Flex Middle East FZE
(Flex FZE) (Cost Allegation
Memorandum) (February 29, 2008), on
file in the Central Record Unit, room
1117 of the main Department of
Commerce building (CRU). On March
12, 2008, Flex FZE submitted its
response to the second supplemental
questionnaire. On March 14, 2008, Flex
FZE submitted its response to the
section D questionnaire.
On March 21, 2008, the petitioners
submitted an allegation pursuant to 19
CFR 351.301(d)(5) that certain U.S. sales
by Flex FZE were targeted for dumping.
On March 27, 2008, the Department
issued a supplemental questionnaire for
sections A through D to Flex FZE. On
March 31, 2008, Flex FZE submitted
comments regarding the petitioners’
targeted dumping allegation. On April 1,
2008, the Department issued a letter to
Flex FZE to clarify the March 27, 2008,
supplemental questionnaire. On April 8,
2008, Flex FZE submitted its response
to the sections A through D
supplemental questionnaire. On April
11, 2008, the Department issued
questions to the petitioners regarding its
targeted dumping allegation. On April
E:\FR\FM\05MYN1.SGM
05MYN1
24548
Federal Register / Vol. 73, No. 87 / Monday, May 5, 2008 / Notices
21, 2008, the petitioners submitted a
response to the Department’s questions
regarding the targeted dumping
allegation.
rfrederick on PROD1PC67 with NOTICES
Respondent Identification
Section 777A(c)(1) of the Act directs
the Department to calculate individual
dumping margins for each known
exporter and producer of the subject
merchandise. Section 777A(c)(2) of the
Act gives the Department discretion,
when faced with a large number of
producers/exporters, to limit its
examination to a reasonable number of
such companies if it is not practicable
to examine all companies. Where it is
not practicable to examine all known
producers/exporters of subject
merchandise, this provision permits the
Department to investigate either (A) a
sample of exporters, producers, or types
of products that is statistically valid
based on the information available to
the Department at the time of selection
or (B) producers/exporters accounting
for the largest volume of the
merchandise under investigation that
can reasonably be examined. In the
petition, the petitioners identified one
potential producer and exporter of PET
Film in the UAE: Flex FZE.
Based on our analysis of import data
obtained from U.S. Customs and Border
Protection (CBP), we selected one
producer/exporter, Flex FZE, as the
mandatory respondent in this
investigation because this company is
the only producer of UAE subject
merchandise exported to the United
States during the POI. Therefore, the
Department determined that Flex FZE is
the sole producer and exporter of PET
Film in the UAE. For a complete
analysis of our respondent selection, see
Memorandum to Barbara E. Tillman,
Director, Office 6, ‘‘Antidumping Duty
Investigation on PET Film from the UAE
- Respondent Selection,’’ November 27,
2007 (Respondent Selection
Memorandum). Therefore, pursuant to
section 777A(c)(2)(B) of the Act, the
Department has calculated an
individual dumping margin for the
selected producer/exporter.
Postponement of Final Determination
Section 735(a)(2)(A) of the Act
provides that a final determination may
be postponed until not later than 135
days after the date of the publication of
the preliminary determination if, in the
event of an affirmative preliminary
determination, a request for such
postponement is made by exporters who
account for a significant proportion of
exports of the subject merchandise.
Section 351.210(e)(2) of the
Department’s regulations requires that
VerDate Aug<31>2005
15:16 May 02, 2008
Jkt 214001
exporters requesting postponement of
the final determination must also
request an extension of the provisional
measures referred to in section 733(d) of
the Act from a four–month period to not
more than six months. We received a
request to postpone the final
determination and extend the
provisional measures from Flex FZE on
April 18, 2008. Because this preliminary
determination is affirmative, the request
for postponement was made by an
exporter who accounts for a significant
proportion of exports of the subject
merchandise, and there is no
compelling reason to deny the
respondent’s request, we have extended
the deadline for issuance of the final
determination until the 135th day after
the date of publication of this
preliminary determination in the
Federal Register and we will extend the
provisional measures to not more than
six months.
Period of Investigation
The period of investigation (POI) is
July 1, 2006 through June 30, 2007.
Scope of the Investigation
The products covered by this
investigation 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 its
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 purposes of Customs
and Border Protection (CBP), our
written description of the scope of this
investigation is dispositive.
Party Comments on Scope and Model
Matching
On October 30, 2007, the Department
asked all parties in this investigation
and in the concurrent antidumping duty
investigations of PET Film from Brazil,
the People’s Republic of China (PRC),
and Thailand, for comments on the
appropriate product characteristics for
defining individual products. In
addition, the Department requested all
parties in this investigation and in the
concurrent antidumping duty
investigations of PET Film from Brazil,
the PRC, and Thailand, to submit
PO 00000
Frm 00019
Fmt 4703
Sfmt 4703
comments on the appropriate model
matching methodology. See Letter from
Robert James, Program Manager, AD/
CVD Enforcement 7, dated October 7,
2007. We received comments from
petitioners on November 6, 2007,
requesting that the Department include
the grade of PET Film in the model
match criteria. Additionally, petitioners
requested that the Department include a
field identifying whether or not the PET
Film has been coextruded. In its
November 29, 2007 questionnaire, the
Department requested that respondent
report the grade of the PET Film, but did
not request a field identifying whether
the PET Film is coextruded. For
purposes of this preliminary
determination, the Department has
determined that it is unnecessary to
change the proposed product
characteristics and model matching
methodology with regard to coextrusion.
For purposes of distinguishing subject
merchandise, the Department will take
into account the grade of the PET Film,
as advocated by petitioners in their
submission.
On November 15, 2007, Avery
Dennison requested that the Department
find that ‘‘release liner,’’ a PET film
product treated on one or both sides
with a specially–cured silicon coating,
is outside the scope of these
investigations. Petitioners filed a
submission objecting to Avery
Dennison’s request on November 29,
2007; petitioners re–submitted their
objections with amended bracketing on
December 14, 2007, and the document
was accepted for the record on that date.
Petitioners argue that release liner is
‘‘PET film that clearly falls within the
scope of these investigations.’’ See
Petitioners’ December 14, 2007
submission at 1 and 2. Avery Dennison
responded to the petitioners comments
on February 1, 2008.
In accordance with section 731(i) of
the Act, we have determined that the
descriptions of the merchandise
contained in the petition and in our
Notice of Initiation support the
conclusion that release film is of the
same class or kind of merchandise
covered by the scope of the proposed
antidumping duty order. See also
generally 19 CFR 351.225(k)(1). The
product descriptions in the petition and
in the Department’s Notice of Initiation
specifically exclude finished films with
a ‘‘performance enhancing resinous or
inorganic layer of more than 0.00001
inches thick.’’ There is nothing in the
proposed scope language of either the
petition or our Notice of Initiation that
excludes products bearing a
performance enhancing resinous or
inorganic layer of less than 0.00001
E:\FR\FM\05MYN1.SGM
05MYN1
Federal Register / Vol. 73, No. 87 / Monday, May 5, 2008 / Notices
rfrederick on PROD1PC67 with NOTICES
inches from the scope of the order.
Moreover, there is no language in either
the proposed scope language of the
petition or our Notice of Initiation that
limits the scope of the investigation to
‘‘PET base film,’’ (i.e., PET film prior to
the application of in–line coatings), as
Avery Dennison suggests. In addition,
release liner shares the chemical
composition of PET film described in
the proposed scope of the petition and
Notice of Initiation.
One of the purposes of a less than fair
value investigation is to decide the
merchandise specifically covered by the
scope of the ultimate antidumping duty
order. Based upon the foregoing, we
have preliminarily determined that
release film is of the same class or kind
of merchandise as that described in the
petition and in the Department’s Notice
of Initiation. Thus, we have determined
that release film is covered by the scope
of the antidumping investigation of PET
film from Thailand. For a full
discussion of this issue, see the
memorandum titled ‘‘Antidumping
Duty Investigations on Polyethylene
Terephthalate Film, Sheet, and Strip
(PET film) from Brazil, the People’s
Republic of China, Thailand, and the
United Arab Emirates,’’ from Micheal J.
Heaney, Senior Case Analyst, to
Stephen J. Claeys, Deputy Assistant
Secretary for Import Administration,
dated April 25, 2008, issued
concurrently with this notice.
We have relied on four criteria to
match U.S. sales of subject merchandise
to comparison market sales of the
foreign like product: grade,
specification, thickness, and surface
treatment. Where there were no sales of
identical merchandise in the
comparison market made in the
ordinary course of trade to compare to
U.S. sales, we compared U.S. sales to
the next most similar foreign like
product on the basis of the
characteristics listed above.
Targeted Dumping
On March 21, 2008, the petitioners
submitted a timely allegation that Flex
FZE engaged in targeted dumping
during the POI in accordance with 19
CFR 351.301(d)(5). On March 31, 2008,
Flex FZE submitted comments in
response to the petitioners’ targeted
dumping allegation. On April 11, 2008,
the Department requested additional
information from the petitioners
regarding their targeted dumping
allegation. The additional information
requested was filed on April 21, 2008.
Therefore, there was not sufficient time
to analyze the information and fully
consider the petitioners’ allegation for
this preliminary determination. The
VerDate Aug<31>2005
15:16 May 02, 2008
Jkt 214001
24549
Department will issue a decision
regarding targeted dumping for this
investigation following the issuance of
the preliminary determination, and will
allow parties to comment on it prior to
the final determination.
below. In accordance with section
777A(d)(1) of the Act, we calculated the
weighted–average prices for NV and
compared these to the weighted–average
of CEP.
Date of Sale
It is the Department’s practice to use
invoice date as the date of sale. The
regulations further provide that the
Department may use a date other than
the date of invoice if the Secretary is
satisfied that a different date better
reflects the date on which the exporter
or producer establishes the material
terms of sale (i.e., price and quantity).
See 19 CFR 351.401(i); see also Allied
Tube and Conduit Corp. v. United
States, 132 F. Supp. 2d 1087, 1090–92
(CIT 2001). Flex FZE reported invoice
date as its date of sale for both its home
market and U.S. market sales during the
POI.
Based on Flex FZE’s questionnaire
responses, we preliminarily determine
that invoice date is the appropriate date
of sale in both markets. Flex FZE stated
in its February 26, 2008 supplemental
questionnaire response that the
company reported invoice date as the
date of sale because that is the date
when the price and quantity are finally
set. In addition, Flex FZE stated that
changes between the order date and the
invoice date can occur, but records of
these types of changes are not
maintained electronically. In its
February 26, 2008 supplemental
response, Flex FZE provided two
examples for home market sales where
changes occurred between order date
and invoice date. We issued a
supplemental questionnaire on March
31, 2008 requesting Flex FZE to provide
information indicating changes between
order date and invoice date for U.S.
sales during the POI. Flex FZE
responded that no such changes had
occurred in the U.S. market during the
POI.
On April 25, 2008, the Department
issued an additional supplemental
questionnaire for further information
regarding date of sale in the U.S. market.
We intend to continue evaluating
whether invoice date appropriately
represents the date on which the
material terms of sale are set in the U.S.
market.
For the price to the United States,
pursuant to section 772(b) of the Act, we
used CEP because all sales to the United
States were made by Flex America Inc.,
Flex FZE’s U.S. subsidiary, and Flex
America Inc. made the sale to the first
unaffiliated purchaser in the United
States of the subject merchandise. We
based CEP on the packed prices charged
to the first unaffiliated customer in the
United States and the applicable terms
of sale. See Flex FZE’s December 19,
2007 section A questionnaire response.
The Department calculated Flex FZE’s
starting price as its gross unit price to
its unaffiliated U.S. customers, making
adjustments where necessary for billing
adjustments and early payment
discounts, pursuant to section 772(c)(1)
of the Act. Where applicable, the
Department made deductions for
movement expenses (foreign inland
freight, international freight, U.S.
movement, U.S. customs duty and
brokerage, and post–sale warehousing)
in accordance with section 772(c)(2) of
the Act and 19 CFR 351.401(e). In
accordance with sections 772(d)(1) and
(2) of the Act, we also deducted, where
applicable, U.S. direct selling expenses,
including warranty, credit expenses,
U.S. commissions, and U.S. indirect
selling expenses and U.S. inventory
carrying costs incurred in the United
States and in the UAE associated with
economic activities in the United States.
We also deducted CEP profit in
accordance with section 772(d)(3) of the
Act.
Fair Value Comparisons
To determine whether sales of PET
Film from the UAE were made in the
United States at less than normal value
(NV), we compared the constructed
export price (CEP) to the NV, as
described in the ‘‘Constructed Export
Price’’ and ‘‘Normal Value’’ sections
PO 00000
Frm 00020
Fmt 4703
Sfmt 4703
Constructed Export Price
Normal Value
Home Market Viability and Comparison
Market Selection
To determine whether there was a
sufficient volume of sales in the home
market (i.e., the UAE) to serve as a
viable basis for calculating NV, we
compared the respondent’s volume of
home market sales of the foreign like
product to the volume of its U.S. sales
of the subject merchandise. Pursuant to
section 773(a)(1)(B)(II) of the Act,
because the aggregate quantity (or, if
quantity is not appropriate, value) of the
foreign like product sold by Flex FZE in
its home market is five percent or more
of the aggregate quantity of the subject
merchandise sold in the United States
or for export to the United States, we
determined that Flex FZE’s sales of PET
Film in the UAE were sufficient to find
E:\FR\FM\05MYN1.SGM
05MYN1
24550
Federal Register / Vol. 73, No. 87 / Monday, May 5, 2008 / Notices
the home market viable for comparison
purposes. Accordingly, we calculated
NV for Flex FZE based on sales prices
to UAE customers.
Cost of Production Analysis
Based on our analysis of the
petitioners’ allegation, we found that
there were reasonable grounds to
believe or suspect that Flex FZE’s sales
of PET Film in the home market were
made at prices below its COP.
Accordingly, pursuant to section 773(b)
of the Tariff Act, we initiated a sales–
below-cost investigation to determine
whether Flex FZE had sales that were
made at prices below its respective
COPs. See Cost Allegation
Memorandum.
rfrederick on PROD1PC67 with NOTICES
1. Calculation of Cost of Production
In accordance with section 773(b)(3)
of the Act, we calculated COP based on
the sum of Flex FZE’s cost of materials
and fabrication for the foreign like
product, plus amounts for general and
administrative expenses (‘‘G&A’’), and
interest expenses. We relied on the COP
information provided by Flex FZE in its
questionnaire response except in the
following instances.
Pursuant to section 773(f)(3) of the
Act, we adjusted Flex FZE’s reported
cost of manufacturing to reflect the
higher of the transfer price, the market
price, and the affiliate’s cost of
production for PET chips purchased by
Flex FZE from affiliated suppliers. In
addition, pursuant to section 773(f)(2) of
the Act, we adjusted Flex FZE’s
reported cost of manufacturing to reflect
the higher of the transfer price and the
market price for chemicals purchased by
Flex FZE from affiliated suppliers.
We adjusted UFlex Limited’s (UFlex
Limited is Flex FZE’s parent company)
cost of goods sold used as the
denominator in the calculation of the
reported financial expense ratio to
include depreciation expense and to
exclude inter–unit purchases of raw
materials which are eliminated on
UFlex Limited’s consolidated financial
statements. For further details regarding
these adjustments, see Memorandum
from Ernest Gziryan to Neal M. Halper,
Director, Office of Accounting, ‘‘Cost of
Production and Constructed Value
Calculation Adjustments for the
Preliminary Determination – Flex
Middle East FZE’’ (April 25, 2008).
2. Test of Comparison Market Sales
Prices
On a product–specific basis, we
compared the adjusted weighted–
average COP to the home market sales
prices of the foreign like product, as
required under section 773(b) of the Act,
VerDate Aug<31>2005
15:16 May 02, 2008
Jkt 214001
in order to determine whether the sale
prices were below the COP. The prices
were exclusive of any applicable
movement charges, direct and indirect
selling expenses, and packing expenses.
3. Results of the COP Test
In determining whether to disregard
home market sales made at prices below
the COP, we examined, in accordance
with sections 773(b)(1)(A) and (B) of the
Act, whether, within an extended
period of time, such sales were made in
substantial quantities, and whether such
sales were not made at prices which
permitted the recovery of all costs
within a reasonable period of time.
Pursuant to section 773(b)(2)(C) of the
Act, where less than 20 percent of the
respondent’s home market sales of a
given model were at prices below the
COP, we did not disregard any below–
cost sales of that model because we
determined that the below–cost sales
were not made within an extended
period of time in ‘‘substantial
quantities.’’ Where 20 percent or more
of the respondent’s home market sales
of a given model were at prices less than
COP, we disregarded the below–cost
sales because: (1) they were made
within an extended period of time in
‘‘substantial quantities,’’ in accordance
with sections 773(b)(2)(B) and (C) of the
Act, and (2) based on our comparison of
prices to the weighted–average COPs for
the POR, they were at prices which
would not permit the recovery of all
costs within a reasonable period of time,
in accordance with section 773(b)(2)(D)
of the Act. During the POI, none of Flex
UAE’s home market sales were
disregarded. For further information on
the results of Flex UAE’s cost test, see
Memorandum to the File, from Douglas
Kirby through Dana Mermelstein,
Analysis of Flex Middle East FZE, dated
April 25, 2008 (Flex FZE Preliminary
Analysis Memorandum), on file in CRU.
Calculation of Normal Value Based on
Comparison Market Prices
We calculated NV based on prices to
unaffiliated customers in the UAE and
matched U.S. sales to NV. We made
deductions, where appropriate, for
billing adjustments, discounts, rebates,
movement expenses, and packing
pursuant to section 773(a)(6)(B) of the
Act. In addition, we made adjustments
for differences in cost attributable to
differences in physical characteristics of
the merchandise, pursuant to section
773(a)(6)(C)(ii) of the Act and 19 CFR
351.411.
PO 00000
Frm 00021
Fmt 4703
Sfmt 4703
Level of Trade/Constructed Export Price
Offset
In accordance with section
773(a)(1)(B)(i) of the Act, to the extent
practicable, we determine NV based on
sales in the comparison market at the
same level of trade (LOT) as the CEP
transaction. The LOT in the comparison
market is the LOT of the starting–price
sales in the comparison market or, when
NV is based on CV, the LOT of the sales
from which we derive SG&A expenses
and profit. For CEP sales, the LOT is
that of the constructed sale from the
exporter to the affiliated importer. See
19 CFR 351.412(c)(ii). See also Micron
Technology, Inc. v. United States, 243
F.3d 1301, 1314 (Fed. Cir. 2001).
To determine whether comparison
market sales are at a different LOT from
U.S. sales, we examined stages in the
marketing process and selling functions
along the chain of distribution between
the producer and the unaffiliated
customer. If the comparison market
sales are at a different LOT, and the
difference affects price comparability, as
manifested in a pattern of consistent
price differences between the sales on
which NV is based and comparison
market sales at the LOT of the export
transaction, the Department makes an
LOT adjustment in accordance with
section 773(a)(7)(A) of the Act. For CEP
sales, we examine stages in the
marketing process and selling functions
along the chain of distribution between
the producer and the customer. We
analyze whether different selling
activities are performed, and whether
any price differences (other than those
for which other allowances are made
under the Act) are shown to be wholly
or partly due to a difference in LOT
between the CEP and NV. Under section
773(a)(7)(A) of the Act, we make an
upward or downward adjustment to NV
for LOT if the difference in LOT
involves the performance of different
selling activities and is demonstrated to
affect price comparability, based on a
pattern of consistent price differences
between sales at different LOTs in the
country in which NV is determined.
Finally, if the NV LOT is at a more
advanced stage of distribution than the
LOT of the CEP, but the data available
do not provide an appropriate basis to
determine a LOT adjustment, we reduce
NV by the amount of indirect selling
expenses incurred in the foreign
comparison market on sales of the
foreign like product, but by no more
than the amount of the indirect selling
expenses incurred for CEP sales. See
section 773(a)(7)(B) of the Act (the CEP
offset provision).
E:\FR\FM\05MYN1.SGM
05MYN1
rfrederick on PROD1PC67 with NOTICES
Federal Register / Vol. 73, No. 87 / Monday, May 5, 2008 / Notices
In analyzing differences in selling
functions, we determine whether the
LOTs identified by the respondent are
meaningful. See Antidumping Duties;
Countervailing Duties, Final Rule, 62 FR
27296, 27371 (May 19, 1997). If the
claimed LOTs are the same, we expect
that the functions and activities of the
seller should be similar. Conversely, if
a party claims that LOTs are different
for different groups of sales, the
functions and activities of the seller
should be dissimilar. See Porcelain–onSteel Cookware from Mexico: Final
Results of Antidumping Duty
Administrative Review, 65 FR 30068
(May 10, 2000) and accompanying
Issues and Decision Memorandum at
Comment 6.
For CEP sales, we consider only the
selling activities reflected in the price
after the deduction of expenses and CEP
profit under section 772(d) of the Act.
See Micron Technology Inc. v. United
States, 243 F. 3d 1301, 1314–1315 (Fed.
Cir. 2001). We reviewed the selling
functions and services performed by
Flex FZE on CEP sales for three
channels of distribution relating to the
CEP LOT, as described by Flex FZE in
its questionnaire responses, after these
deductions. We have determined that
the selling functions performed by Flex
FZE on its U.S. sales (all of which are
CEP sales) are similar because for all
U.S. sales, Flex FZE provides almost no
selling functions to its U.S. affiliate,
Flex America, in support of the three
channels of distribution. See Flex UAE
Preliminary Analysis Memorandum for
additional information regarding Flex
FZE’s selling functions for CEP sales.
Accordingly, because the selling
functions provided by Flex FZE for CEP
sales are minimal, and the selling
functions provided by Flex America to
unaffiliated customers in the United
States in all three channels of
distribution are substantially similar
and are provided at the same degree of
service, we preliminarily determine that
there is one CEP LOT in the U.S.
market.
According to section 773(a)(7)(B) of
the Act, a CEP offset is appropriate
when the LOT in the home market is at
a more advanced stage than the LOT of
the CEP sales and there are no data
available to determine the existence of
a pattern of price difference. Flex UAE
reported that it provided minimal
selling functions and services for the
one (CEP) LOT in the United States and
that, therefore, the comparison market
LOT is more advanced than the CEP
LOT. Based on our analysis of the
channels of distribution and selling
functions performed by Flex FZE for
sales in the comparison market and CEP
VerDate Aug<31>2005
15:16 May 02, 2008
Jkt 214001
sales in the U.S. market, we
preliminarily find that the comparison
market LOT is at a more advanced stage
of distribution when compared to CEP
sales because Flex FZE provides many
more selling functions in the
comparison market at a higher level of
service as compared to the selling
function it performs for its CEP sales.
For a discussion of the proprietary
information regarding Flex FZE’s
comparison market selling functions,
see Flex FZE Preliminary Analysis
Memorandum. Thus, we find that Flex
FZE’s comparison market sales are at a
more advanced LOT than its CEP sales.
In addition, we preliminarily determine
there is only one LOT in the comparison
market. Therefore, there are no data
available to determine the existence of
a pattern of price differences; nor do we
have any other information that
provides an appropriate basis for
determining a LOT adjustment.
Therefore, consistent with section
773(a)(7)(B) of the Act, we applied a
CEP offset to NV for CEP comparisons.
To calculate the CEP offset, we
deducted from NV the comparison
market indirect selling expenses for
comparison market sales that were
compared to U.S. CEP sales. We limited
the comparison market indirect selling
expense deduction by the amount of the
indirect selling expenses deducted in
calculating CEP as required under
section 772(d)(1)(D) of the Act.
Currency Conversions
The Department’s preferred source for
daily exchange rates is the Federal
Reserve Bank. See Preliminary Results
of Antidumping Duty Administrative
Review: Stainless Steel Sheet and Strip
in Coils from France, 68 FR 47049,
47055 (August 7, 2003), remaining
unchanged in Notice of Final Results of
Antidumping Duty Administrative
Review: Stainless Steel Sheet and Strip
in Coils from France, 68 FR 69379
(December 12, 2003). However, the
Federal Reserve Bank does not track or
publish exchange rates for the UAE
dirham. Therefore, we made currency
conversions from UAE dirhams to U.S.
dollars based on the daily exchange
rates from Factiva, a Dow Jones &
Reuters Retrieval Service. Factiva
publishes exchange rates for Monday
through Friday only. We used the rate
of exchange on the most recent Friday
for conversion dates involving Saturday
and Sunday, where necessary. See e.g.,
Certain Steel Nails From the United
Arab Emirates: Notice of Preliminary
Determination of Sales at Less Than
Fair Value and Postponement of Final
Determination, 73 FR 3945 (January 23,
2008).
PO 00000
Frm 00022
Fmt 4703
Sfmt 4703
24551
Verification
As provided in section 782(i) of the
Act, we intend to verify the information
upon which we will rely in making our
final determination.
All–Others Rate
Pursuant to section 735(c)(5)(A) of the
Act, the all others rate is equal to the
weighted average of the dumping
margins of each respondent
investigated, excluding zero or de
minimis margins and any margins
determined exclusively under section
776 of the Act. Flex UAE is the only
respondent in this investigation for
which the Department has calculated a
company–specific rate. Therefore, for
purposes of determining the all–others
rate and pursuant to section 735(c)(5)(A)
of the Act, we are using the rate
calculated for Flex UAE as the all–
others rate, as referenced in the
‘‘Preliminary Determination’’ section
below.
Preliminary Determination
The weighted–average dumping
margins are as follows:
Producer/Exporter
Flex Middle East FZE .................
All Others ....................................
Weighted–
Average
Margin
2.45%
2.45%
Suspension of Liquidation
In accordance with section 733(d)(2)
of the Act, we are directing U.S.
Customs and Border Protection (CBP) to
suspend liquidation of all entries of PET
Film from the UAE that are entered, or
withdrawn from warehouse, for
consumption on or after the date of
publication of this notice in the Federal
Register. We will instruct CBP to
require a cash deposit or the posting of
a bond equal to the weighted–average
dumping margin, as indicated in the
chart above, as follows: (1) the rate for
the firm listed above will be the rate we
have determined in this preliminary
determination; (2) if the exporter is not
a firm identified in this investigation,
but the producer is, the rate will be the
rate established for the producer of the
subject merchandise; (3) the rate for all
other producers or exporters will be the
all others rate listed above. These
suspension of liquidation instructions
will remain in effect until further notice.
ITC Notification
In accordance with section 733(f) of
the Act, we have notified the ITC of the
Department’s preliminary affirmative
determination. If the Department’s final
determination is affirmative, the ITC
E:\FR\FM\05MYN1.SGM
05MYN1
24552
Federal Register / Vol. 73, No. 87 / Monday, May 5, 2008 / Notices
will determine before the later of 120
days after the date of this preliminary
determination or 45 days after our final
determination whether imports of PET
Film from the UAE materially injure, or
threaten material injury to, the U.S.
industry.
rfrederick on PROD1PC67 with NOTICES
Public Comment
We will disclose the calculations used
in our analysis to parties in this
proceeding in accordance with 19 CFR
351.224(b). Interested parties are invited
to comment on the preliminary
determination. Interested parties may
submit case briefs to the Department no
later than seven days after the date of
the issuance of the final verification
report in this proceeding. See 19 CFR
351.309(c)(1)(i). Rebuttal briefs, the
content of which is limited to the issues
raised in the case briefs, must be filed
within five days from the deadline date
for the submission of case briefs. See 19
CFR 351.309(d)(1) and (2). A list of
authorities used, a table of contents, and
an executive summary of issues should
accompany any briefs submitted to the
Department. Executive summaries
should be limited to five pages total,
including footnotes. Further, we request
that parties submitting briefs and
rebuttal briefs provide the Department
with a copy of the public version of
such briefs on diskette.
In accordance with section 774 of the
Act, 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, provided that such a hearing is
requested by an interested party. If a
request for a hearing is made in this
investigation, the hearing will
tentatively be held two days after the
rebuttal brief deadline date at the U.S.
Department of Commerce, 14th Street
and Constitution Avenue, NW.,
Washington, DC 20230, at a time and in
a room to be determined. Parties should
confirm by telephone, the date, time,
and location of the hearing 48 hours
before the scheduled date.
Interested parties who wish to request
a hearing, or to participate in a hearing
if one is requested, must submit a
written request to the Assistant
Secretary for Import Administration,
U.S. Department of Commerce, Room
1870, within 30 days of the publication
of this notice. Requests should contain:
(1) The party’s name, address, and
telephone number; (2) the number of
participants; and (3) a list of the issues
to be discussed. See 19 CFR 351.310(c).
At the hearing, oral presentations will
be limited to issues raised in the briefs.
VerDate Aug<31>2005
15:16 May 02, 2008
Jkt 214001
This determination is issued and
published pursuant to sections 733(f)
and 777(I)(1) of the Act.
Dated: April 25, 2008.
David M. Spooner,
Assistant Secretary for Import
Administration.
[FR Doc. E8–9844 Filed 5–2–08; 8:45 am]
BILLING CODE 3510–DS–S
DEPARTMENT OF COMMERCE
International Trade Administration
(A–570–924)
Polyethylene Terephthalate Film,
Sheet, and Strip from the People’s
Republic of China: Preliminary
Determination of Sales at Less Than
Fair Value
Import Administration,
International Trade Administration,
Department of Commerce.
EFFECTIVE DATE: May 5, 2008.
SUMMARY: We preliminarily determine
that polyethylene terephthalate film,
sheet, and strip (‘‘PET Film’’) from the
People’s Republic of China (‘‘PRC’’) is
being, or is 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 margins of sales at
LTFV are shown in the ‘‘Preliminary
Determination’’ section of this notice.
Interested parties are invited to
comment on this preliminary
determination. We will make our final
determination 75 days after the date of
publication of this preliminary
determination, pursuant to section
735(a) of the Act.
FOR FURTHER INFORMATION CONTACT: Erin
Begnal or Toni Dach, AD/CVD
Operations, Office 9, Import
Administration, International Trade
Administration, U.S. Department of
Commerce, 14th Street and Constitution
Avenue, NW, Washington, DC, 20230;
telephone: (202) 482–1442 or 482–1655,
respectively.
SUPPLEMENTAL INFORMATION:
AGENCY:
Initiation
On September 28, 2007, the
Department of Commerce
(‘‘Department’’) received petitions on
imports of PET Film from Brazil, the
PRC, Thailand, and the United Arab
Emirates (‘‘UAE’’) (‘‘petitions’’) filed in
proper form by Dupont Teijin Films,
Mitsubishi Polyester Film Inc., SKC
Inc., and Toray Plastics (America) Inc.,
(collectively, ‘‘Petitioners’’). See
Antidumping Duty Petition:
Polyethylene Terephthalate Film, Sheet,
PO 00000
Frm 00023
Fmt 4703
Sfmt 4703
and Strip (PET Film) from Brazil,
Republic of China, Thailand, and the
United Arab Emirates (September 28,
2007). These investigations were
initiated on October 18, 2007. See
Polyethylene Terephthalate Film, Sheet,
and Strip (PET Film) from Brazil, the
People’s Republic of China, Thailand,
and the United Arab Emirates: Initiation
of Antidumping Duty Investigations, 72
FR 60801 (October 26, 2007) (‘‘Initiation
Notice’’).
On November 13, 2007, the United
States International Trade Commission
(‘‘ITC’’) issued its affirmative
preliminary determination that there is
a reasonable indication that an industry
in the United States is materially
injured or threatened with material
injury by reason of imports from Brazil,
the PRC, Thailand, and UAE of PET
Film. The ITC’s determination was
published in the Federal Register on
November 30, 2007. See Polyethylene
Terephthalate Film, Sheet, and Strip
From Brazil, China, Thailand, and the
United Arab Emirates, 72 FR 67756
(November 30, 2007); see also
Polyethylene Terephthalate Film, Sheet,
and Strip from Brazil, China, Thailand,
and the United Arab Emirates:
Investigation Nos. 731–TA–1131–1134
(Preliminary), Publication 3962
(November 2007).
Scope Comments
In accordance with the preamble to
our regulations, we set aside a period of
time for parties to raise issues regarding
product coverage and encouraged all
parties to submit comments within 20
calendar days of publication of the
Initiation Notice. See Antidumping
Duties; Countervailing Duties; Final
Rule, 62 FR 27296, 27323 (May 19,
1997).
On November 15, 2007, Avery
Dennison requested that the Department
find that ‘‘release liner,’’ a PET Film
product treated on one or both sides
with a specially–cured silicon coating of
less than 0.00001 inches, is outside the
scope of these investigations. Petitioners
filed a submission objecting to Avery
Dennison’s request on November 29,
2007; Petitioners re–submitted their
objections with amended bracketing on
December 14, 2007, and the document
was accepted for the record on that date.
Petitioners argue that release liner is
‘‘PET Film that clearly falls within the
scope of these investigations.’’ See
Petitioners’ December 14, 2007,
submission at 1 and 2. Avery Dennison
responded to Petitioners’ comments on
February 1, 2008.
In accordance with section 731(i) of
the Act, we have determined that the
descriptions of the merchandise
E:\FR\FM\05MYN1.SGM
05MYN1
Agencies
[Federal Register Volume 73, Number 87 (Monday, May 5, 2008)]
[Notices]
[Pages 24547-24552]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-9844]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
(A-520-803)
Polyethylene Terephthalate Film, Sheet, and Strip from the United
Arab Emirates: Preliminary Determination of Sales at Less Than Fair
Value and Postponement of Final Determination
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: The U.S. Department of Commerce (the Department)
preliminarily determines that Polyethylene Terephthalate Film, Sheet,
and Strip (PET Film) from the United Arab Emirates (UAE) is being, or
is 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 margins of sales at LTFV are listed in
the ``Preliminary Determination'' section of this notice. Interested
parties are invited to comment on this preliminary determination.
Pursuant to a request from an interested party, we are postponing our
final determination to not later than 135 days after publication of the
preliminary determination.
EFFECTIVE DATE: May 5, 2008.
FOR FURTHER INFORMATION CONTACT: Douglas Kirby or Myrna Lobo, AD/CVD
Operations, Office 6, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-
3782 or (202) 482-2371, respectively.
SUPPLEMENTARY INFORMATION:
Background
This investigation was initiated on October 18, 2007. See
Polyethylene Terephthalate Film, Sheet, and Strip (PET Film) from
Brazil, the People's Republic of China, Thailand, and the United Arab
Emirates: Initiation of Antidumping Duty Investigations (Notice of
Initiation), 72 FR 60801 (October 26, 2007). On November 13, 2007, the
United States International Trade Commission (ITC) preliminarily
determined that, pursuant to section 733(a) of the Act, there is a
reasonable indication that an industry in the United States is
materially injured by reason of imports of PET Film from Brazil, China,
Thailand, and the United Arab Emirates. See Investigation Nos. 731-TA-
1131-1134 (Preliminary): Polyethylene Terephthalate Film, Sheet, and
Strip from Brazil, China, Thailand, and the United Arab Emirates, 72 FR
67756 (November 13, 2007) (ITC Preliminary Determination). The domestic
interested parties are DuPont Teijin Films, Mitsubishi Polyester Film
of America, Inc., SKC, Inc. and Toray Plastics (America), Inc.
(collectively, the petitioners). The respondent for this investigation
is Flex Middle East FZE (Flex FZE).
On November 27, 2007, the Department issued its sections A through
E questionnaires to Flex FZE. On December 19, 2007, Flex FZE submitted
its section A response. On January 18, 2008, Flex FZE submitted its
sections B and C responses. On January 23, 2008, the petitioners made a
timely request pursuant to section 733(c)(1) of the Act and 19 CFR
351.205(e) for a postponement of the preliminary determinations with
respect to Brazil, the People's Republic of China, Thailand, and the
United Arab Emirates. See Polyethylene Terephthalate Film, Sheet, and
Strip from Brazil, the People's Republic of China, Thailand, and the
United Arab Emirates: Postponement of Preliminary Determinations of
Antidumping Duty Investigations, 73 FR 7710 (February 11, 2008).
On February 6, 2008, the petitioners submitted a timely allegation
that home market sales were being made at prices below the cost of
production and requested that the Department initiate a sales-below-
cost investigation of Flex FZE pursuant to 19 CFR 351.301(d)(2)(B). On
February 8, 2008, the Department issued its first supplemental
questionnaire to Flex FZE. On February 27, 2008, Flex FZE submitted its
response to the first supplemental questionnaire. On February 29, 2008,
the Department issued a second supplemental questionnaire to Flex FZE.
On February 29, 2008, the Department initiated a sales-below-cost-
investigation of Flex FZE and requested that Flex FZE respond to the
section D questionnaire. See Memorandum to Barbara E. Tillman,
Director, AD/CVD Operations, Office 6, from the Team, Petitioners'
Allegation of Sales Below the Cost of Production for Flex Middle East
FZE (Flex FZE) (Cost Allegation Memorandum) (February 29, 2008), on
file in the Central Record Unit, room 1117 of the main Department of
Commerce building (CRU). On March 12, 2008, Flex FZE submitted its
response to the second supplemental questionnaire. On March 14, 2008,
Flex FZE submitted its response to the section D questionnaire.
On March 21, 2008, the petitioners submitted an allegation pursuant
to 19 CFR 351.301(d)(5) that certain U.S. sales by Flex FZE were
targeted for dumping. On March 27, 2008, the Department issued a
supplemental questionnaire for sections A through D to Flex FZE. On
March 31, 2008, Flex FZE submitted comments regarding the petitioners'
targeted dumping allegation. On April 1, 2008, the Department issued a
letter to Flex FZE to clarify the March 27, 2008, supplemental
questionnaire. On April 8, 2008, Flex FZE submitted its response to the
sections A through D supplemental questionnaire. On April 11, 2008, the
Department issued questions to the petitioners regarding its targeted
dumping allegation. On April
[[Page 24548]]
21, 2008, the petitioners submitted a response to the Department's
questions regarding the targeted dumping allegation.
Respondent Identification
Section 777A(c)(1) of the Act directs the Department to calculate
individual dumping margins for each known exporter and producer of the
subject merchandise. Section 777A(c)(2) of the Act gives the Department
discretion, when faced with a large number of producers/exporters, to
limit its examination to a reasonable number of such companies if it is
not practicable to examine all companies. Where it is not practicable
to examine all known producers/exporters of subject merchandise, this
provision permits the Department to investigate either (A) a sample of
exporters, producers, or types of products that is statistically valid
based on the information available to the Department at the time of
selection or (B) producers/exporters accounting for the largest volume
of the merchandise under investigation that can reasonably be examined.
In the petition, the petitioners identified one potential producer and
exporter of PET Film in the UAE: Flex FZE.
Based on our analysis of import data obtained from U.S. Customs and
Border Protection (CBP), we selected one producer/exporter, Flex FZE,
as the mandatory respondent in this investigation because this company
is the only producer of UAE subject merchandise exported to the United
States during the POI. Therefore, the Department determined that Flex
FZE is the sole producer and exporter of PET Film in the UAE. For a
complete analysis of our respondent selection, see Memorandum to
Barbara E. Tillman, Director, Office 6, ``Antidumping Duty
Investigation on PET Film from the UAE - Respondent Selection,''
November 27, 2007 (Respondent Selection Memorandum). Therefore,
pursuant to section 777A(c)(2)(B) of the Act, the Department has
calculated an individual dumping margin for the selected producer/
exporter.
Postponement of Final Determination
Section 735(a)(2)(A) of the Act provides that a final determination
may be postponed until not later than 135 days after the date of the
publication of the preliminary determination if, in the event of an
affirmative preliminary determination, a request for such postponement
is made by exporters who account for a significant proportion of
exports of the subject merchandise. Section 351.210(e)(2) of the
Department's regulations requires that exporters requesting
postponement of the final determination must also request an extension
of the provisional measures referred to in section 733(d) of the Act
from a four-month period to not more than six months. We received a
request to postpone the final determination and extend the provisional
measures from Flex FZE on April 18, 2008. Because this preliminary
determination is affirmative, the request for postponement was made by
an exporter who accounts for a significant proportion of exports of the
subject merchandise, and there is no compelling reason to deny the
respondent's request, we have extended the deadline for issuance of the
final determination until the 135th day after the date of publication
of this preliminary determination in the Federal Register and we will
extend the provisional measures to not more than six months.
Period of Investigation
The period of investigation (POI) is July 1, 2006 through June 30,
2007.
Scope of the Investigation
The products covered by this investigation 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 its 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 purposes of Customs and Border Protection
(CBP), our written description of the scope of this investigation is
dispositive.
Party Comments on Scope and Model Matching
On October 30, 2007, the Department asked all parties in this
investigation and in the concurrent antidumping duty investigations of
PET Film from Brazil, the People's Republic of China (PRC), and
Thailand, for comments on the appropriate product characteristics for
defining individual products. In addition, the Department requested all
parties in this investigation and in the concurrent antidumping duty
investigations of PET Film from Brazil, the PRC, and Thailand, to
submit comments on the appropriate model matching methodology. See
Letter from Robert James, Program Manager, AD/CVD Enforcement 7, dated
October 7, 2007. We received comments from petitioners on November 6,
2007, requesting that the Department include the grade of PET Film in
the model match criteria. Additionally, petitioners requested that the
Department include a field identifying whether or not the PET Film has
been coextruded. In its November 29, 2007 questionnaire, the Department
requested that respondent report the grade of the PET Film, but did not
request a field identifying whether the PET Film is coextruded. For
purposes of this preliminary determination, the Department has
determined that it is unnecessary to change the proposed product
characteristics and model matching methodology with regard to
coextrusion. For purposes of distinguishing subject merchandise, the
Department will take into account the grade of the PET Film, as
advocated by petitioners in their submission.
On November 15, 2007, Avery Dennison requested that the Department
find that ``release liner,'' a PET film product treated on one or both
sides with a specially-cured silicon coating, is outside the scope of
these investigations. Petitioners filed a submission objecting to Avery
Dennison's request on November 29, 2007; petitioners re-submitted their
objections with amended bracketing on December 14, 2007, and the
document was accepted for the record on that date. Petitioners argue
that release liner is ``PET film that clearly falls within the scope of
these investigations.'' See Petitioners' December 14, 2007 submission
at 1 and 2. Avery Dennison responded to the petitioners comments on
February 1, 2008.
In accordance with section 731(i) of the Act, we have determined
that the descriptions of the merchandise contained in the petition and
in our Notice of Initiation support the conclusion that release film is
of the same class or kind of merchandise covered by the scope of the
proposed antidumping duty order. See also generally 19 CFR
351.225(k)(1). The product descriptions in the petition and in the
Department's Notice of Initiation specifically exclude finished films
with a ``performance enhancing resinous or inorganic layer of more than
0.00001 inches thick.'' There is nothing in the proposed scope language
of either the petition or our Notice of Initiation that excludes
products bearing a performance enhancing resinous or inorganic layer of
less than 0.00001
[[Page 24549]]
inches from the scope of the order. Moreover, there is no language in
either the proposed scope language of the petition or our Notice of
Initiation that limits the scope of the investigation to ``PET base
film,'' (i.e., PET film prior to the application of in-line coatings),
as Avery Dennison suggests. In addition, release liner shares the
chemical composition of PET film described in the proposed scope of the
petition and Notice of Initiation.
One of the purposes of a less than fair value investigation is to
decide the merchandise specifically covered by the scope of the
ultimate antidumping duty order. Based upon the foregoing, we have
preliminarily determined that release film is of the same class or kind
of merchandise as that described in the petition and in the
Department's Notice of Initiation. Thus, we have determined that
release film is covered by the scope of the antidumping investigation
of PET film from Thailand. For a full discussion of this issue, see the
memorandum titled ``Antidumping Duty Investigations on Polyethylene
Terephthalate Film, Sheet, and Strip (PET film) from Brazil, the
People's Republic of China, Thailand, and the United Arab Emirates,''
from Micheal J. Heaney, Senior Case Analyst, to Stephen J. Claeys,
Deputy Assistant Secretary for Import Administration, dated April 25,
2008, issued concurrently with this notice.
We have relied on four criteria to match U.S. sales of subject
merchandise to comparison market sales of the foreign like product:
grade, specification, thickness, and surface treatment. Where there
were no sales of identical merchandise in the comparison market made in
the ordinary course of trade to compare to U.S. sales, we compared U.S.
sales to the next most similar foreign like product on the basis of the
characteristics listed above.
Targeted Dumping
On March 21, 2008, the petitioners submitted a timely allegation
that Flex FZE engaged in targeted dumping during the POI in accordance
with 19 CFR 351.301(d)(5). On March 31, 2008, Flex FZE submitted
comments in response to the petitioners' targeted dumping allegation.
On April 11, 2008, the Department requested additional information from
the petitioners regarding their targeted dumping allegation. The
additional information requested was filed on April 21, 2008.
Therefore, there was not sufficient time to analyze the information and
fully consider the petitioners' allegation for this preliminary
determination. The Department will issue a decision regarding targeted
dumping for this investigation following the issuance of the
preliminary determination, and will allow parties to comment on it
prior to the final determination.
Date of Sale
It is the Department's practice to use invoice date as the date of
sale. The regulations further provide that the Department may use a
date other than the date of invoice if the Secretary is satisfied that
a different date better reflects the date on which the exporter or
producer establishes the material terms of sale (i.e., price and
quantity). See 19 CFR 351.401(i); see also Allied Tube and Conduit
Corp. v. United States, 132 F. Supp. 2d 1087, 1090-92 (CIT 2001). Flex
FZE reported invoice date as its date of sale for both its home market
and U.S. market sales during the POI.
Based on Flex FZE's questionnaire responses, we preliminarily
determine that invoice date is the appropriate date of sale in both
markets. Flex FZE stated in its February 26, 2008 supplemental
questionnaire response that the company reported invoice date as the
date of sale because that is the date when the price and quantity are
finally set. In addition, Flex FZE stated that changes between the
order date and the invoice date can occur, but records of these types
of changes are not maintained electronically. In its February 26, 2008
supplemental response, Flex FZE provided two examples for home market
sales where changes occurred between order date and invoice date. We
issued a supplemental questionnaire on March 31, 2008 requesting Flex
FZE to provide information indicating changes between order date and
invoice date for U.S. sales during the POI. Flex FZE responded that no
such changes had occurred in the U.S. market during the POI.
On April 25, 2008, the Department issued an additional supplemental
questionnaire for further information regarding date of sale in the
U.S. market. We intend to continue evaluating whether invoice date
appropriately represents the date on which the material terms of sale
are set in the U.S. market.
Fair Value Comparisons
To determine whether sales of PET Film from the UAE were made in
the United States at less than normal value (NV), we compared the
constructed export price (CEP) to the NV, as described in the
``Constructed Export Price'' and ``Normal Value'' sections below. In
accordance with section 777A(d)(1) of the Act, we calculated the
weighted-average prices for NV and compared these to the weighted-
average of CEP.
Constructed Export Price
For the price to the United States, pursuant to section 772(b) of
the Act, we used CEP because all sales to the United States were made
by Flex America Inc., Flex FZE's U.S. subsidiary, and Flex America Inc.
made the sale to the first unaffiliated purchaser in the United States
of the subject merchandise. We based CEP on the packed prices charged
to the first unaffiliated customer in the United States and the
applicable terms of sale. See Flex FZE's December 19, 2007 section A
questionnaire response.
The Department calculated Flex FZE's starting price as its gross
unit price to its unaffiliated U.S. customers, making adjustments where
necessary for billing adjustments and early payment discounts, pursuant
to section 772(c)(1) of the Act. Where applicable, the Department made
deductions for movement expenses (foreign inland freight, international
freight, U.S. movement, U.S. customs duty and brokerage, and post-sale
warehousing) in accordance with section 772(c)(2) of the Act and 19 CFR
351.401(e). In accordance with sections 772(d)(1) and (2) of the Act,
we also deducted, where applicable, U.S. direct selling expenses,
including warranty, credit expenses, U.S. commissions, and U.S.
indirect selling expenses and U.S. inventory carrying costs incurred in
the United States and in the UAE associated with economic activities in
the United States. We also deducted CEP profit in accordance with
section 772(d)(3) of the Act.
Normal Value
Home Market Viability and Comparison Market Selection
To determine whether there was a sufficient volume of sales in the
home market (i.e., the UAE) to serve as a viable basis for calculating
NV, we compared the respondent's volume of home market sales of the
foreign like product to the volume of its U.S. sales of the subject
merchandise. Pursuant to section 773(a)(1)(B)(II) of the Act, because
the aggregate quantity (or, if quantity is not appropriate, value) of
the foreign like product sold by Flex FZE in its home market is five
percent or more of the aggregate quantity of the subject merchandise
sold in the United States or for export to the United States, we
determined that Flex FZE's sales of PET Film in the UAE were sufficient
to find
[[Page 24550]]
the home market viable for comparison purposes. Accordingly, we
calculated NV for Flex FZE based on sales prices to UAE customers.
Cost of Production Analysis
Based on our analysis of the petitioners' allegation, we found that
there were reasonable grounds to believe or suspect that Flex FZE's
sales of PET Film in the home market were made at prices below its COP.
Accordingly, pursuant to section 773(b) of the Tariff Act, we initiated
a sales-below-cost investigation to determine whether Flex FZE had
sales that were made at prices below its respective COPs. See Cost
Allegation Memorandum.
1. Calculation of Cost of Production
In accordance with section 773(b)(3) of the Act, we calculated COP
based on the sum of Flex FZE's cost of materials and fabrication for
the foreign like product, plus amounts for general and administrative
expenses (``G&A''), and interest expenses. We relied on the COP
information provided by Flex FZE in its questionnaire response except
in the following instances.
Pursuant to section 773(f)(3) of the Act, we adjusted Flex FZE's
reported cost of manufacturing to reflect the higher of the transfer
price, the market price, and the affiliate's cost of production for PET
chips purchased by Flex FZE from affiliated suppliers. In addition,
pursuant to section 773(f)(2) of the Act, we adjusted Flex FZE's
reported cost of manufacturing to reflect the higher of the transfer
price and the market price for chemicals purchased by Flex FZE from
affiliated suppliers.
We adjusted UFlex Limited's (UFlex Limited is Flex FZE's parent
company) cost of goods sold used as the denominator in the calculation
of the reported financial expense ratio to include depreciation expense
and to exclude inter-unit purchases of raw materials which are
eliminated on UFlex Limited's consolidated financial statements. For
further details regarding these adjustments, see Memorandum from Ernest
Gziryan to Neal M. Halper, Director, Office of Accounting, ``Cost of
Production and Constructed Value Calculation Adjustments for the
Preliminary Determination - Flex Middle East FZE'' (April 25, 2008).
2. Test of Comparison Market Sales Prices
On a product-specific basis, we compared the adjusted weighted-
average COP to the home market sales prices of the foreign like
product, as required under section 773(b) of the Act, in order to
determine whether the sale prices were below the COP. The prices were
exclusive of any applicable movement charges, direct and indirect
selling expenses, and packing expenses.
3. Results of the COP Test
In determining whether to disregard home market sales made at
prices below the COP, we examined, in accordance with sections
773(b)(1)(A) and (B) of the Act, whether, within an extended period of
time, such sales were made in substantial quantities, and whether such
sales were not made at prices which permitted the recovery of all costs
within a reasonable period of time. Pursuant to section 773(b)(2)(C) of
the Act, where less than 20 percent of the respondent's home market
sales of a given model were at prices below the COP, we did not
disregard any below-cost sales of that model because we determined that
the below-cost sales were not made within an extended period of time in
``substantial quantities.'' Where 20 percent or more of the
respondent's home market sales of a given model were at prices less
than COP, we disregarded the below-cost sales because: (1) they were
made within an extended period of time in ``substantial quantities,''
in accordance with sections 773(b)(2)(B) and (C) of the Act, and (2)
based on our comparison of prices to the weighted-average COPs for the
POR, they were at prices which would not permit the recovery of all
costs within a reasonable period of time, in accordance with section
773(b)(2)(D) of the Act. During the POI, none of Flex UAE's home market
sales were disregarded. For further information on the results of Flex
UAE's cost test, see Memorandum to the File, from Douglas Kirby through
Dana Mermelstein, Analysis of Flex Middle East FZE, dated April 25,
2008 (Flex FZE Preliminary Analysis Memorandum), on file in CRU.
Calculation of Normal Value Based on Comparison Market Prices
We calculated NV based on prices to unaffiliated customers in the
UAE and matched U.S. sales to NV. We made deductions, where
appropriate, for billing adjustments, discounts, rebates, movement
expenses, and packing pursuant to section 773(a)(6)(B) of the Act. In
addition, we made adjustments for differences in cost attributable to
differences in physical characteristics of the merchandise, pursuant to
section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411.
Level of Trade/Constructed Export Price Offset
In accordance with section 773(a)(1)(B)(i) of the Act, to the
extent practicable, we determine NV based on sales in the comparison
market at the same level of trade (LOT) as the CEP transaction. The LOT
in the comparison market is the LOT of the starting-price sales in the
comparison market or, when NV is based on CV, the LOT of the sales from
which we derive SG&A expenses and profit. For CEP sales, the LOT is
that of the constructed sale from the exporter to the affiliated
importer. See 19 CFR 351.412(c)(ii). See also Micron Technology, Inc.
v. United States, 243 F.3d 1301, 1314 (Fed. Cir. 2001).
To determine whether comparison market sales are at a different LOT
from U.S. sales, we examined stages in the marketing process and
selling functions along the chain of distribution between the producer
and the unaffiliated customer. If the comparison market sales are at a
different LOT, and the difference affects price comparability, as
manifested in a pattern of consistent price differences between the
sales on which NV is based and comparison market sales at the LOT of
the export transaction, the Department makes an LOT adjustment in
accordance with section 773(a)(7)(A) of the Act. For CEP sales, we
examine stages in the marketing process and selling functions along the
chain of distribution between the producer and the customer. We analyze
whether different selling activities are performed, and whether any
price differences (other than those for which other allowances are made
under the Act) are shown to be wholly or partly due to a difference in
LOT between the CEP and NV. Under section 773(a)(7)(A) of the Act, we
make an upward or downward adjustment to NV for LOT if the difference
in LOT involves the performance of different selling activities and is
demonstrated to affect price comparability, based on a pattern of
consistent price differences between sales at different LOTs in the
country in which NV is determined. Finally, if the NV LOT is at a more
advanced stage of distribution than the LOT of the CEP, but the data
available do not provide an appropriate basis to determine a LOT
adjustment, we reduce NV by the amount of indirect selling expenses
incurred in the foreign comparison market on sales of the foreign like
product, but by no more than the amount of the indirect selling
expenses incurred for CEP sales. See section 773(a)(7)(B) of the Act
(the CEP offset provision).
[[Page 24551]]
In analyzing differences in selling functions, we determine whether
the LOTs identified by the respondent are meaningful. See Antidumping
Duties; Countervailing Duties, Final Rule, 62 FR 27296, 27371 (May 19,
1997). If the claimed LOTs are the same, we expect that the functions
and activities of the seller should be similar. Conversely, if a party
claims that LOTs are different for different groups of sales, the
functions and activities of the seller should be dissimilar. See
Porcelain-on-Steel Cookware from Mexico: Final Results of Antidumping
Duty Administrative Review, 65 FR 30068 (May 10, 2000) and accompanying
Issues and Decision Memorandum at Comment 6.
For CEP sales, we consider only the selling activities reflected in
the price after the deduction of expenses and CEP profit under section
772(d) of the Act. See Micron Technology Inc. v. United States, 243 F.
3d 1301, 1314-1315 (Fed. Cir. 2001). We reviewed the selling functions
and services performed by Flex FZE on CEP sales for three channels of
distribution relating to the CEP LOT, as described by Flex FZE in its
questionnaire responses, after these deductions. We have determined
that the selling functions performed by Flex FZE on its U.S. sales (all
of which are CEP sales) are similar because for all U.S. sales, Flex
FZE provides almost no selling functions to its U.S. affiliate, Flex
America, in support of the three channels of distribution. See Flex UAE
Preliminary Analysis Memorandum for additional information regarding
Flex FZE's selling functions for CEP sales. Accordingly, because the
selling functions provided by Flex FZE for CEP sales are minimal, and
the selling functions provided by Flex America to unaffiliated
customers in the United States in all three channels of distribution
are substantially similar and are provided at the same degree of
service, we preliminarily determine that there is one CEP LOT in the
U.S. market.
According to section 773(a)(7)(B) of the Act, a CEP offset is
appropriate when the LOT in the home market is at a more advanced stage
than the LOT of the CEP sales and there are no data available to
determine the existence of a pattern of price difference. Flex UAE
reported that it provided minimal selling functions and services for
the one (CEP) LOT in the United States and that, therefore, the
comparison market LOT is more advanced than the CEP LOT. Based on our
analysis of the channels of distribution and selling functions
performed by Flex FZE for sales in the comparison market and CEP sales
in the U.S. market, we preliminarily find that the comparison market
LOT is at a more advanced stage of distribution when compared to CEP
sales because Flex FZE provides many more selling functions in the
comparison market at a higher level of service as compared to the
selling function it performs for its CEP sales. For a discussion of the
proprietary information regarding Flex FZE's comparison market selling
functions, see Flex FZE Preliminary Analysis Memorandum. Thus, we find
that Flex FZE's comparison market sales are at a more advanced LOT than
its CEP sales. In addition, we preliminarily determine there is only
one LOT in the comparison market. Therefore, there are no data
available to determine the existence of a pattern of price differences;
nor do we have any other information that provides an appropriate basis
for determining a LOT adjustment. Therefore, consistent with section
773(a)(7)(B) of the Act, we applied a CEP offset to NV for CEP
comparisons.
To calculate the CEP offset, we deducted from NV the comparison
market indirect selling expenses for comparison market sales that were
compared to U.S. CEP sales. We limited the comparison market indirect
selling expense deduction by the amount of the indirect selling
expenses deducted in calculating CEP as required under section
772(d)(1)(D) of the Act.
Currency Conversions
The Department's preferred source for daily exchange rates is the
Federal Reserve Bank. See Preliminary Results of Antidumping Duty
Administrative Review: Stainless Steel Sheet and Strip in Coils from
France, 68 FR 47049, 47055 (August 7, 2003), remaining unchanged in
Notice of Final Results of Antidumping Duty Administrative Review:
Stainless Steel Sheet and Strip in Coils from France, 68 FR 69379
(December 12, 2003). However, the Federal Reserve Bank does not track
or publish exchange rates for the UAE dirham. Therefore, we made
currency conversions from UAE dirhams to U.S. dollars based on the
daily exchange rates from Factiva, a Dow Jones & Reuters Retrieval
Service. Factiva publishes exchange rates for Monday through Friday
only. We used the rate of exchange on the most recent Friday for
conversion dates involving Saturday and Sunday, where necessary. See
e.g., Certain Steel Nails From the United Arab Emirates: Notice of
Preliminary Determination of Sales at Less Than Fair Value and
Postponement of Final Determination, 73 FR 3945 (January 23, 2008).
Verification
As provided in section 782(i) of the Act, we intend to verify the
information upon which we will rely in making our final determination.
All-Others Rate
Pursuant to section 735(c)(5)(A) of the Act, the all others rate is
equal to the weighted average of the dumping margins of each respondent
investigated, excluding zero or de minimis margins and any margins
determined exclusively under section 776 of the Act. Flex UAE is the
only respondent in this investigation for which the Department has
calculated a company-specific rate. Therefore, for purposes of
determining the all-others rate and pursuant to section 735(c)(5)(A) of
the Act, we are using the rate calculated for Flex UAE as the all-
others rate, as referenced in the ``Preliminary Determination'' section
below.
Preliminary Determination
The weighted-average dumping margins are as follows:
------------------------------------------------------------------------
Weighted-
Producer/Exporter Average Margin
------------------------------------------------------------------------
Flex Middle East FZE................................... 2.45[percnt]
All Others............................................. 2.45[percnt]
------------------------------------------------------------------------
Suspension of Liquidation
In accordance with section 733(d)(2) of the Act, we are directing
U.S. Customs and Border Protection (CBP) to suspend liquidation of all
entries of PET Film from the UAE that are entered, or withdrawn from
warehouse, for consumption on or after the date of publication of this
notice in the Federal Register. We will instruct CBP to require a cash
deposit or the posting of a bond equal to the weighted-average dumping
margin, as indicated in the chart above, as follows: (1) the rate for
the firm listed above will be the rate we have determined in this
preliminary determination; (2) if the exporter is not a firm identified
in this investigation, but the producer is, the rate will be the rate
established for the producer of the subject merchandise; (3) the rate
for all other producers or exporters will be the all others rate listed
above. These suspension of liquidation instructions will remain in
effect until further notice.
ITC Notification
In accordance with section 733(f) of the Act, we have notified the
ITC of the Department's preliminary affirmative determination. If the
Department's final determination is affirmative, the ITC
[[Page 24552]]
will determine before the later of 120 days after the date of this
preliminary determination or 45 days after our final determination
whether imports of PET Film from the UAE materially injure, or threaten
material injury to, the U.S. industry.
Public Comment
We will disclose the calculations used in our analysis to parties
in this proceeding in accordance with 19 CFR 351.224(b). Interested
parties are invited to comment on the preliminary determination.
Interested parties may submit case briefs to the Department no later
than seven days after the date of the issuance of the final
verification report in this proceeding. See 19 CFR 351.309(c)(1)(i).
Rebuttal briefs, the content of which is limited to the issues raised
in the case briefs, must be filed within five days from the deadline
date for the submission of case briefs. See 19 CFR 351.309(d)(1) and
(2). A list of authorities used, a table of contents, and an executive
summary of issues should accompany any briefs submitted to the
Department. Executive summaries should be limited to five pages total,
including footnotes. Further, we request that parties submitting briefs
and rebuttal briefs provide the Department with a copy of the public
version of such briefs on diskette.
In accordance with section 774 of the Act, 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,
provided that such a hearing is requested by an interested party. If a
request for a hearing is made in this investigation, the hearing will
tentatively be held two days after the rebuttal brief deadline date at
the U.S. Department of Commerce, 14th Street and Constitution Avenue,
NW., Washington, DC 20230, at a time and in a room to be determined.
Parties should confirm by telephone, the date, time, and location of
the hearing 48 hours before the scheduled date.
Interested parties who wish to request a hearing, or to participate
in a hearing if one is requested, must submit a written request to the
Assistant Secretary for Import Administration, U.S. Department of
Commerce, Room 1870, within 30 days of the publication of this notice.
Requests should contain: (1) The party's name, address, and telephone
number; (2) the number of participants; and (3) a list of the issues to
be discussed. See 19 CFR 351.310(c). At the hearing, oral presentations
will be limited to issues raised in the briefs.
This determination is issued and published pursuant to sections
733(f) and 777(I)(1) of the Act.
Dated: April 25, 2008.
David M. Spooner,
Assistant Secretary for Import Administration.
[FR Doc. E8-9844 Filed 5-2-08; 8:45 am]
BILLING CODE 3510-DS-S