Polyethylene Retail Carrier Bags from the Socialist Republic of Vietnam: Final Affirmative Countervailing Duty Determination, 16428-16431 [2010-7395]

Download as PDF 16428 Federal Register / Vol. 75, No. 62 / Thursday, April 1, 2010 / Notices under section 516A(e) of the Act. This notice is effective as of February 19, 2010. The Department will continue to suspend liquidation pending the expiration of the period to appeal the CIT’s February 9, 2010 decision, or, if that decision is appealed, pending a ‘‘conclusive’’ decision by the Federal Circuit. Upon expiration of the period to appeal, or if the CIT’s decision is appealed and the Federal Circuit’s decision is not in harmony with the Department’s determination in the 2005–2006 antidumping duty administrative review of freshwater crawfish tail meat from the PRC, the Department will publish in the Federal Register a notice of amended final results of the 2005–2006 administrative review. This notice is issued and published in accordance with section 516A(c)(1) of the Act. Dated: March 24, 2010. Ronald K. Lorentzen, Deputy Assistant Secretary for Import Administration. [FR Doc. 2010–7407 Filed 3–31–10; 8:45 am] BILLING CODE 3510–DS–S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648–XV63 Endangered Species; File Nos. 15112 and 13307–02 mstockstill on DSKH9S0YB1PROD with NOTICES AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; receipt of application and application for modification. SUMMARY: Notice is hereby given that NMFS Northeast Fisheries Science Center, Woods Hole, MA, has applied in due form for a permit to take loggerhead (Caretta caretta), leatherback (Dermochelys coriacea), Kemp’s ridley (Lepidochelys kempii), green (Chelonia mydas), and hawksbill (Eretmochelys imbricata) sea turtles for purposes of scientific research. Kristen Hart, Ph.D., USGS, Davie, FL has applied for a modification to scientific research Permit No. 13307–01 to take green sea turtles. DATES: Written, telefaxed, or e-mail comments must be received on or before May 3, 2010. ADDRESSES: The applications and related documents are available for review by selecting ‘‘Records Open for VerDate Nov<24>2008 16:51 Mar 31, 2010 Jkt 220001 Public Comment’’ from the Features box on the Applications and Permits for Protected Species (APPS) home page, https://apps.nmfs.noaa.gov, and then selecting File No. 15112 or 13307–02 from the list of available applications. These documents are also available upon written request or by appointment in the following offices: Permits, Conservation and Education Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 713–2289; fax (301) 713–0376; and Southeast Region, NMFS, 263 13th Avenue South, Saint Petersburg, Florida 33701; phone (727) 824–5312; fax (727) 824–5309. Written comments on these applications should be submitted to the Chief, Permits, Conservation and Education Division, at the address listed above. Comments may also be submitted by facsimile to (301) 713–0376, or by email to NMFS.Pr1Comments@noaa.gov. Please include the File No. in the subject line of the comment. Those individuals requesting a public hearing should submit a written request to the Chief, Permits, Conservation and Education Division at the address listed above. The request should set forth the specific reasons why a hearing on the application would be appropriate. FOR FURTHER INFORMATION CONTACT: Kate Swails or Amy Hapeman, (301) 713– 2289. The subject permit and modification are requested under the authority of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 et seq.) and the regulations governing the taking, importing, and exporting of endangered and threatened species (50 CFR 222–226). File No. 15112: The purpose of the research is to determine the size and composition of populations of sea turtles found in the commercial fishing areas of the Northwest Atlantic Ocean. The research would contribute to the understanding of the pelagic ecology of these species and allow more reliable assessments of commercial fishery impacts. Annually up to 130 loggerhead, 70 Kemp’s ridley, 50 green, 10 hawksbill, and 50 leatherback sea turtles caught in commercial fisheries would be measured, flipper tagged, tissue sampled, and released. The permit would be issued for five years. File No. 13307–02: Dr. Hart is authorized to capture up to 30 green, 20 hawksbill, and 20 loggerhead sea turtles annually. Turtles may be weighed, measured, flipper tagged, PIT tagged, SUPPLEMENTARY INFORMATION: PO 00000 Frm 00007 Fmt 4703 Sfmt 4703 blood sampled, tissue sampled, fecal sampled, and lavaged. A subset of turtles may be tagged with a satellite tag or acoustic transmitter or a combination of both. This research addresses finescale temporal and spatial patterns of sea turtle habitat use, ecology, and genetic origin within the Dry Tortugas National Park. Dr. Hart proposes to increase the number of green sea turtles that she captures to 80 per year due to the high rate of recent capture success. The modification would be valid until the permit expires on June 30, 2013. Dated: March 29, 2010. P. Michael Payne, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. 2010–7350 Filed 3–31–10; 8:45 am] BILLING CODE 3510–22–S DEPARTMENT OF COMMERCE International Trade Administration [C–552–805] Polyethylene Retail Carrier Bags from the Socialist Republic of Vietnam: Final Affirmative Countervailing Duty Determination AGENCY: Import Administration, International Trade Administration, Department of Commerce. SUMMARY: The Department of Commerce (Department) has determined that countervailable subsidies are being provided to producers and exporters of polyethylene retail carrier bags (PRCBs) from the Socialist Republic of Vietnam (Vietnam). For information on the estimated countervailing duty rates, please see the ‘‘Suspension of Liquidation’’ section, below. DATES: Effective Date: April 1, 2010. FOR FURTHER INFORMATION CONTACT: Gene Calvert or Jun Jack Zhao, 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) 482–3586 and (202) 482–1396, respectively. Case History The following events have occurred since the announcement of the preliminary determination, which was published in the Federal Register on September 4, 2009. See Polyethylene Retail Carrier Bags from the Socialist Republic of Vietnam: Preliminary Affirmative Countervailing Duty Determination and Alignment of Final Countervailing Duty Determination with E:\FR\FM\01APN1.SGM 01APN1 mstockstill on DSKH9S0YB1PROD with NOTICES Federal Register / Vol. 75, No. 62 / Thursday, April 1, 2010 / Notices Final Antidumping Duty Determination, 74 FR 45811 (September 4, 2009) (Preliminary Determination). The Department issued a second supplemental questionnaire to the government of Vietnam (GOV), Advance Polybag Co., Ltd. (API), Chin Sheng Company, Ltd. (Chin Sheng), and Fotai Vietnam Enterprise Corporation and Fotai Enterprise Corporation (collectively, Fotai). The Department received responses to these questionnaires on October 7, 2009 from API, on October 14 from Chin Sheng and the GOV, and on October 16 from Fotai. A third supplemental questionnaire was subsequently issued to the GOV only. The GOV submitted a response on October 26. Public versions of the questionnaires and responses, as well as the various memoranda cited below, are available at the Department’s Central Records Unit (Room 1117 in the HCHB Building) (hereafter referred to as ‘‘CRU’’). Also on October 26, new factual information was submitted by Hilex Poly Co., LLC and Suberbag Corporation (collectively, Petitioners), the GOV, and Fotai. On October 21, 2009, the Department was informed by API that it was no longer participating in the investigation. See the October 21, 2009 Letter to the Secretary of Commerce, ‘‘Countervailing Duty Investigation Involving Polyethylene Retail Carrier Bags from Vietnam.’’ From November 2 through November 18, 2009, we conducted verification of the questionnaire responses submitted by the GOV, Chin Sheng and Fotai. We issued verification reports on January 4, 2010. See Memorandum to the File, ‘‘Verification of the Questionnaire Responses Submitted by the Government of Vietnam,’’ and Memoranda to Mark Hoadley, Program Manager, AD/CVD Operations, Office 6, ‘‘Verification of the Questionnaire Responses Submitted by Chin Sheng Company, Ltd.,’’ and ‘‘Verification of the Questionnaire Responses Submitted by Fotai Vietnam Enterprise Corporation.’’ On January 11, 2010, we issued a report regarding discussions held with third party experts concerning banking in Vietnam. See Memorandum to Barbara E. Tillman, Director, AD/CVD Operations, Office 6, ‘‘Private Experts Meeting on Vietnam’s Banking Sector.’’ We received case briefs from Petitioners, the GOV, Chin Sheng and Fotai on January 25, 2010, and rebuttal briefs from Petitioners, the GOV, and Fotai on February 1, 2010. On January 27, 2010, Petitioners withdrew their request for a hearing, submitted on October 5, 2009. On February 12, 2010, the Department exercised its discretion to toll Import VerDate Nov<24>2008 16:51 Mar 31, 2010 Jkt 220001 Administration deadlines for the duration of the closure of the Federal Government from February 5 through February 12, 2010. Thus, all deadlines in this segment of the proceeding were extended by seven days. See Memorandum to the Record from Ronald Lorentzen, Deputy Assistant Secretary for Import Administration, regarding ‘‘Tolling of Administrative Deadlines As a Result of the Government Closure During the Recent Snowstorm,’’ dated February 12, 2010.’’ Based on this memorandum, the deadline for this final determination was changed from March 18, 2010 to March 25, 2010. Scope of the Investigation The scope of this investigation covers polyethylene retail carrier bags, which also may be referred to as t–shirt sacks, merchandise bags, grocery bags, or checkout bags. The subject merchandise is defined as non–sealable sacks and bags with handles (including drawstrings), without zippers or integral extruded closures, with or without gussets, with or without printing, of polyethylene film having a thickness no greater than 0.035 inch (0.889 mm) and no less than 0.00035 inch (0.00889 mm), and with no length or width shorter than 6 inches (15.24 cm) or longer than 40 inches (101.6 cm). The depth of the bag may be shorter than 6 inches but not longer than 40 inches (101.6 cm). PRCBs are typically provided without any consumer packaging and free of charge by retail establishments, e.g., grocery, drug, convenience, department, specialty retail, discount stores, and restaurants to their customers to package and carry their purchased products. The scope of this investigation excludes (1) polyethylene bags that are not printed with logos or store names and that are closeable with drawstrings made of polyethylene film and (2) polyethylene bags that are packed in consumer packaging with printing that refers to specific end–uses other than packaging and carrying merchandise from retail establishments, e.g., garbage bags, lawn bags, trash–can liners. Imports of merchandise included within the scope of this investigation are currently classifiable under statistical category 3923.21.0085 of the Harmonized Tariff Schedule of the United States (HTSUS). This subheading may also cover products that are outside the scope of this investigation. Furthermore, although the HTSUS subheading is provided for convenience and customs purposes, the written description of the scope of this investigation is dispositive. PO 00000 Frm 00008 Fmt 4703 Sfmt 4703 16429 Injury Test Because Vietnam is a ‘‘Subsidies Agreement Country’’ within the meaning of section 701(b) of the Tariff Act of 1930, as amended (the Act), the International Trade Commission (ITC) is required to determine pursuant to section 701(a)(2) of the Act whether imports of the subject merchandise from Vietnam materially injure, or threaten material injury to, a United States industry. On May 29, 2009, the ITC published its preliminary determination that there is a reasonable indication that an industry in the United States is materially injured by reason of allegedly subsidized imports from Vietnam of subject merchandise. See Polyethylene Retail Carrier Bags From Indonesia, Taiwan, and Vietnam; Determinations, 74 FR 25771 (May 29, 2009); and Polyethylene Retail Carrier Bags From Indonesia, Taiwan, and Vietnam (Preliminary), USITC Pub. 4080, Inv. Nos. 701–TA–462 and 731–TA–1156– 1158 (May 2009). Period of Investigation The period for which we are measuring subsidies, i.e., the period of investigation (POI), is January 1, 2008 through December 31, 2008. Analysis of Comments Received All issues raised in the case and rebuttal briefs submitted by Petitioners, the GOC, Chin Sheng and Fotai are addressed in the Memorandum to Ronald K. Lorentzen, Deputy Assistant Secretary for Import Administration, ‘‘Issues and Decision Memorandum for the Final Determination in the Countervailing Duty Investigation of Polyethylene Retail Carrier Bags from the Socialist Republic of Vietnam’’ (March 25, 2010) (hereafter referred to as the ‘‘Decision Memorandum’’), which is hereby adopted by this notice. Attached to this notice as an Appendix is a list of the issues that parties have raised and to which we have responded in the Decision Memorandum. Parties can find this public memorandum in the Department’s CRU. In addition, a complete version of the Decision Memorandum can be accessed directly on the internet at https://ia.ita.doc.gov/ ia–highlights-and–news.html or https:// ia.ita.doc.gov/frn/. The paper copy and electronic version of the Decision Memorandum are identical in content. Application of Adverse Facts Available For purposes of this final determination, we relied on adverse facts available (AFA) in accordance with sections 776(a) and (b) of the Act to determine the total countervailable subsidy rate for API. We also relied on E:\FR\FM\01APN1.SGM 01APN1 16430 Federal Register / Vol. 75, No. 62 / Thursday, April 1, 2010 / Notices AFA to determine the countervailable subsidy rate for Fotai for one of the programs under investigation. A full discussion of our decision to apply AFA is presented in the Decision Memorandum in the section ‘‘Application of Facts Otherwise Available and AFA to API and Fotai.’’ Suspension of Liquidation In accordance with section 705(c)(1)(B)(i)(I) of the Act, we have calculated an individual rate for Chin Sheng and Fotai, and assigned an AFA rate to API. Section 705(c)(5)(A)(i) of the Act states that for companies not investigated, we will determine an all others rate equal to the weighted average countervailable subsidy rates established for exporters and producers individually investigated, excluding any zero and de minimis countervailable subsidy rates, and any rates based entirely on AFA under section 776 of the Act. Since API’s rate is based entirely on AFA and since Chin Sheng’s rate is de minimis, the all others rate is the rate calculated for Fotai. Producer/Exporter Advance Polybag Co., Ltd. ... Chin Sheng Company, Ltd. .. mstockstill on DSKH9S0YB1PROD with NOTICES Fotai Vietnam Enterprise Corp. And Fotai Enterprise Corporation ....................... All Others .............................. Net Subsidy Rate 52.56% 0.44% (de minimis) 5.28% 5.28% Although suspension of liquidation was required on the date of publication of the Preliminary Determination, we subsequently instructed U.S. Customs and Border Protection, pursuant to section 703(d) of the Act, to discontinue the suspension of liquidation for countervailing duty purposes for subject merchandise entered on or after January 2, 2010, but to continue the suspension of liquidation of entries made on or after September 4, 2009 through January 1, 2010. If the ITC issues a final affirmative injury determination, we will issue a countervailing duty order and reinstate the suspension of liquidation under section 706(a) of the Act. We will then require a cash deposit of estimated countervailing duties for entries of subject merchandise in the amounts indicated above, except for Chin Sheng, which would be excluded from an order because it has a de minimis rate. This exclusion will apply only to subject merchandise both produced and exported by Chin Sheng. If the ITC determines that material injury, or threat of material injury, does not exist, this proceeding will be terminated and VerDate Nov<24>2008 16:51 Mar 31, 2010 Jkt 220001 all estimated duties deposited or securities posted as a result of the suspension of liquidation will be refunded or canceled. ITC Notification In accordance with section 705(d) of the Act, we will notify the ITC of our determination. In addition, we are making available to the ITC all non– privileged and non–proprietary information related to this investigation. We will allow the ITC access to all privileged and business proprietary information in our files, provided the ITC confirms that it will not disclose such information, either publicly or under an Administrative Protective Order (APO), without the written consent of the Assistant Secretary for Import Administration. Return or Destruction of Proprietary Information In the event that the ITC issues a final negative injury determination, this notice will serve as the only reminder to parties subject to an APO of their responsibility concerning the destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return/ destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction. This determination is issued and published pursuant to sections 705(d) and 777(i) of the Act. Dated: March 25, 2010. Ronald K. Lorentzen, Deputy Assistant Secretary for Import Administration. Appendix Issues and Decision Memorandum I. Summary II. Background III. Applicability of the CVD Law to Vietnam IV. Subsidies Valuation A. Period of Investigation B. Date of Applicability of CVD Law to Vietnam C. Allocation Period D. Loan Benchmark and Discount Rates E. Attribution of Subsidies – Sales Denominator V. Application of Facts Otherwise Available and AFA for API and Fotai A. API PO 00000 Frm 00009 Fmt 4703 Sfmt 4703 B. Fotai C. Corroboration VI. Analysis of Programs A. Programs Determined To Be Countervailable 1. Income Tax Preferences for Encouraged Industries 2. Income Tax Preferences for FIEs 3. Land Rent Reduction or Exemption for Exporters 4. Import Duty Exemptions for Imported Raw Materials for Exported Goods 5. Exemption of Import Duties on Imports of Spare Parts and Accessories for Industrial Zone Enterprises B. Programs Determined To Be Not Countervailable VAT Exemptions for Equipment for FIEs C. Programs Determined To Be Terminated Export Bonus Program D. Programs Determined To Have Been Not Used During the Period of Investigation 1. Government Provision of Water for LTAR in Industrial Zones 2. Preferential Lending for Exporters 3. Preferential Lending for the Plastics Industry 4. Export Promotion Program 5. New Product Development Program 6. Income Tax Preferences for Exporters 7. Income Tax Preferences for FIEs Operating in Encouraged Industries 8. Import Tax Exemptions for FIEs Using Imported Goods to Create Fixed Assets 9. Exemption of Import Duties on Importation of Fixed Assets for Industrial Zone Enterprises 10. Import Tax Exemptions for FIEs Importing Raw Materials 11. Land Rent Exemption for Manufacturers of Plastic Products 12. Provision of Land Use Rights in Industrial Zones for LTAR 13. Land Rent Reduction or Exemption for FIEs 14. Exemption of Import Duties for Imported Raw Materials for Industrial Zone Enterprises 15. Accelerated Depreciation for Companies in Encouraged Industries and Industrial Zones 16. Losses Carried Forward for Companies in Encouraged Industries and Industrial Zones VII. Analysis of Comments Comment 1: Simultaneous Imposition of CVD and AD Duties on an NME Comment 2: The Appropriate De Minimis Rate Comment 3: Cutoff Date for Countervailing Duties E:\FR\FM\01APN1.SGM 01APN1 Federal Register / Vol. 75, No. 62 / Thursday, April 1, 2010 / Notices Comment 4: Preferential Lending for the Plastics Industry Comment 5: Chin Sheng’s Policy Lending Rate Should Be Recalculated Using the Data Collected at Verification Comment 6: Fotai’s Short–Term Loan Data Were Not Verified Comment 7: Proper Benchmark for Preferential Lending Comment 8: The Provision of Land at LTAR Comment 9: The Proper Benchmark for the Provision of Land at LTAR Comment 10: Duty Exemptions on Imports of Raw Materials Provided to Fotai Comment 11: Chin Sheng’s Sales Denominator Comment 12: Income Tax Programs and Programs Not Used Comment 13: Application of AFA to API VIII. Recommendation [FR Doc. 2010–7395 Filed 3–31–10; 8:45 am] BILLING CODE 3510–DS–S DEPARTMENT OF COMMERCE International Trade Administration [A–560–822] mstockstill on DSKH9S0YB1PROD with NOTICES Polyethylene Retail Carrier Bags From Indonesia: Final Determination of Sales at Less Than Fair Value AGENCY: Import Administration, International Trade Administration, Department of Commerce. SUMMARY: The Department of Commerce (the Department) has determined that imports of polyethylene retail carrier bags (PRCBs) from Indonesia are being, or are likely to be, sold in the United States at less than fair value (LFTV) as provided in section 735 of the Tariff Act of 1930, as amended (the Act). The estimated margins of sales at LTFV are listed in the ‘‘Continuation of Suspension of Liquidation’’ section of this notice. DATES: Effective Date: April 1, 2010. FOR FURTHER INFORMATION CONTACT: Thomas Schauer or Yang Jin Chun, AD/ CVD Operations, Office 5, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone (202) 482–0410 or (202) 482– 5760, respectively. SUPPLEMENTARY INFORMATION: Background On November 3, 2009, the Department published Polyethylene Retail Carrier Bags from Indonesia: Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final VerDate Nov<24>2008 16:51 Mar 31, 2010 Jkt 220001 Determination, 74 FR 56807 (November 3, 2009), as amended in Polyethylene Retail Carrier Bags From Indonesia: Amended Preliminary Determination of Sales at Less Than Fair Value, 74 FR 63720 (December 4, 2009) (collectively, Preliminary Determination), in the Federal Register. We selected the following companies for individual examination: P.T. Super Exim Sari Ltd. and P.T. Super Makmur (collectively, SESSM); 1 P.T. Sido Bangun (SBI). See Preliminary Determination, 74 FR at 56808. On November 16, 2009, SBI informed the Department that it would not participate in the verification of its information and withdrew from the investigation. See SBI’s withdrawal letter to the Department dated November 16, 2009. SBI requested that the Department remove all of its submissions from the administrative record and certify the destruction of the submissions that are in the possession of interested parties to the investigation. Id. We have decided to retain all of SBI’s submissions in the administrative record of this investigation because this information serves as the basis for SBI’s margin. See Memorandum to Laurie Parkhill entitled ‘‘Polyethylene Retail Carrier Bags from Indonesia—PT Sido Bangun’s Request That Its Submissions Be Removed from the Administrative Record’’ dated March 25, 2010, incorporated herein by reference. As provided in section 782(i) of the Act, we conducted sales and cost verifications of the questionnaire responses submitted by SESSM. We used standard verification procedures, including examination of relevant accounting and production records, as well as original source documents provided by SESSM. See Memoranda to the File entitled ‘‘Polyethylene Retail Carrier Bags from Indonesia: Sales Verification of P.T. Super Exim Sari Ltd. and P.T. Super Makmur’’ and ‘‘Verification of the Cost Response of P.T. Super Exim Sari Ltd. and P.T. Super Makmur in the Antidumping Duty Investigation of Polyethylene Retail Carrier Bags from Indonesia’’ dated January 11, 2010, and January 12, 2010, respectively. All verification reports are on file and available in the Central Records Unit, Room 1117, of the main Department of Commerce building. On December 29, 2009, SESSM submitted the sales and cost databases with revisions that reflect SESSM’s 1 Because these two companies function as one common corporate entity that share common sales and production facilities, we have treated SESSM as one company. PO 00000 Frm 00010 Fmt 4703 Sfmt 4703 16431 minor corrections before the verifications and the Department’s findings of SESSM’s reporting errors during the verifications. See SESSM’s December 29, 2009, submission of the sales and cost databases. SESSM and the petitioners 2 filed their case briefs with the Department on January 22, 2010, and rebuttal briefs on January 27, 2010. At the petitioners’ request, we held a hearing, including a closed session where parties discussed business-proprietary information, on January 29, 2010. We used SESSM’s December 29, 2009, sales and cost databases to calculate SESSM’s antidumping duty margin. No parties have objected to the use of these databases. As explained in the memorandum from the Deputy Assistant Secretary for Import Administration, we have exercised our discretion to toll deadlines for the duration of the closure of the Federal Government from February 5 through February 12, 2010. Thus, all deadlines in this investigation have been extended by seven days. The revised deadline for the final determination of this investigation is now March 25, 2010. See Memorandum to the Record from Ronald Lorentzen, DAS for Import Administration, regarding ‘‘Tolling of Administrative Deadlines As a Result of the Government Closure During the Recent Snowstorm,’’ dated February 12, 2010. Period of Investigation The period of investigation is January 1, 2008, through December 31, 2008. This period corresponds to the four most recent fiscal quarters prior to the month of the filing of the petition, March 2009. See 19 CFR 351.204(b)(1). Scope of the Investigation The merchandise subject to this investigation is PRCBs, which also may be referred to as t-shirt sacks, merchandise bags, grocery bags, or checkout bags. The subject merchandise is defined as non-sealable sacks and bags with handles (including drawstrings), without zippers or integral extruded closures, with or without gussets, with or without printing, of polyethylene film having a thickness no greater than 0.035 inch (0.889 mm) and no less than 0.00035 inch (0.00889 mm), and with no length or width shorter than 6 inches (15.24 cm) or longer than 40 inches (101.6 cm). The depth of the bag may be shorter than 6 inches (15.24 cm) but not longer than 40 inches (101.6 cm). 2 The petitioners in this investigation are Hilex Poly Co. LLC and Superbag Corporation. E:\FR\FM\01APN1.SGM 01APN1

Agencies

[Federal Register Volume 75, Number 62 (Thursday, April 1, 2010)]
[Notices]
[Pages 16428-16431]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-7395]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

International Trade Administration

[C-552-805]


Polyethylene Retail Carrier Bags from the Socialist Republic of 
Vietnam: Final Affirmative Countervailing Duty Determination

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.
SUMMARY: The Department of Commerce (Department) has determined that 
countervailable subsidies are being provided to producers and exporters 
of polyethylene retail carrier bags (PRCBs) from the Socialist Republic 
of Vietnam (Vietnam). For information on the estimated countervailing 
duty rates, please see the ``Suspension of Liquidation'' section, 
below.

DATES: Effective Date: April 1, 2010.

FOR FURTHER INFORMATION CONTACT: Gene Calvert or Jun Jack Zhao, 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-
3586 and (202) 482-1396, respectively.

Case History

    The following events have occurred since the announcement of the 
preliminary determination, which was published in the Federal Register 
on September 4, 2009. See Polyethylene Retail Carrier Bags from the 
Socialist Republic of Vietnam: Preliminary Affirmative Countervailing 
Duty Determination and Alignment of Final Countervailing Duty 
Determination with

[[Page 16429]]

Final Antidumping Duty Determination, 74 FR 45811 (September 4, 2009) 
(Preliminary Determination).
    The Department issued a second supplemental questionnaire to the 
government of Vietnam (GOV), Advance Polybag Co., Ltd. (API), Chin 
Sheng Company, Ltd. (Chin Sheng), and Fotai Vietnam Enterprise 
Corporation and Fotai Enterprise Corporation (collectively, Fotai). The 
Department received responses to these questionnaires on October 7, 
2009 from API, on October 14 from Chin Sheng and the GOV, and on 
October 16 from Fotai. A third supplemental questionnaire was 
subsequently issued to the GOV only. The GOV submitted a response on 
October 26. Public versions of the questionnaires and responses, as 
well as the various memoranda cited below, are available at the 
Department's Central Records Unit (Room 1117 in the HCHB Building) 
(hereafter referred to as ``CRU''). Also on October 26, new factual 
information was submitted by Hilex Poly Co., LLC and Suberbag 
Corporation (collectively, Petitioners), the GOV, and Fotai. On October 
21, 2009, the Department was informed by API that it was no longer 
participating in the investigation. See the October 21, 2009 Letter to 
the Secretary of Commerce, ``Countervailing Duty Investigation 
Involving Polyethylene Retail Carrier Bags from Vietnam.''
    From November 2 through November 18, 2009, we conducted 
verification of the questionnaire responses submitted by the GOV, Chin 
Sheng and Fotai. We issued verification reports on January 4, 2010. See 
Memorandum to the File, ``Verification of the Questionnaire Responses 
Submitted by the Government of Vietnam,'' and Memoranda to Mark 
Hoadley, Program Manager, AD/CVD Operations, Office 6, ``Verification 
of the Questionnaire Responses Submitted by Chin Sheng Company, Ltd.,'' 
and ``Verification of the Questionnaire Responses Submitted by Fotai 
Vietnam Enterprise Corporation.'' On January 11, 2010, we issued a 
report regarding discussions held with third party experts concerning 
banking in Vietnam. See Memorandum to Barbara E. Tillman, Director, AD/
CVD Operations, Office 6, ``Private Experts Meeting on Vietnam's 
Banking Sector.''
    We received case briefs from Petitioners, the GOV, Chin Sheng and 
Fotai on January 25, 2010, and rebuttal briefs from Petitioners, the 
GOV, and Fotai on February 1, 2010. On January 27, 2010, Petitioners 
withdrew their request for a hearing, submitted on October 5, 2009.
    On February 12, 2010, the Department exercised its discretion to 
toll Import Administration deadlines for the duration of the closure of 
the Federal Government from February 5 through February 12, 2010. Thus, 
all deadlines in this segment of the proceeding were extended by seven 
days. See Memorandum to the Record from Ronald Lorentzen, Deputy 
Assistant Secretary for Import Administration, regarding ``Tolling of 
Administrative Deadlines As a Result of the Government Closure During 
the Recent Snowstorm,'' dated February 12, 2010.'' Based on this 
memorandum, the deadline for this final determination was changed from 
March 18, 2010 to March 25, 2010.

Scope of the Investigation

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

Injury Test

    Because Vietnam is a ``Subsidies Agreement Country'' within the 
meaning of section 701(b) of the Tariff Act of 1930, as amended (the 
Act), the International Trade Commission (ITC) is required to determine 
pursuant to section 701(a)(2) of the Act whether imports of the subject 
merchandise from Vietnam materially injure, or threaten material injury 
to, a United States industry. On May 29, 2009, the ITC published its 
preliminary determination that there is a reasonable indication that an 
industry in the United States is materially injured by reason of 
allegedly subsidized imports from Vietnam of subject merchandise. See 
Polyethylene Retail Carrier Bags From Indonesia, Taiwan, and Vietnam; 
Determinations, 74 FR 25771 (May 29, 2009); and Polyethylene Retail 
Carrier Bags From Indonesia, Taiwan, and Vietnam (Preliminary), USITC 
Pub. 4080, Inv. Nos. 701-TA-462 and 731-TA-1156-1158 (May 2009).

Period of Investigation

    The period for which we are measuring subsidies, i.e., the period 
of investigation (POI), is January 1, 2008 through December 31, 2008.

Analysis of Comments Received

    All issues raised in the case and rebuttal briefs submitted by 
Petitioners, the GOC, Chin Sheng and Fotai are addressed in the 
Memorandum to Ronald K. Lorentzen, Deputy Assistant Secretary for 
Import Administration, ``Issues and Decision Memorandum for the Final 
Determination in the Countervailing Duty Investigation of Polyethylene 
Retail Carrier Bags from the Socialist Republic of Vietnam'' (March 25, 
2010) (hereafter referred to as the ``Decision Memorandum''), which is 
hereby adopted by this notice. Attached to this notice as an Appendix 
is a list of the issues that parties have raised and to which we have 
responded in the Decision Memorandum. Parties can find this public 
memorandum in the Department's CRU. In addition, a complete version of 
the Decision Memorandum can be accessed directly on the internet at 
https://ia.ita.doc.gov/ia-highlights-and-news.html or https://ia.ita.doc.gov/frn/. The paper copy and electronic version of the 
Decision Memorandum are identical in content.

Application of Adverse Facts Available

    For purposes of this final determination, we relied on adverse 
facts available (AFA) in accordance with sections 776(a) and (b) of the 
Act to determine the total countervailable subsidy rate for API. We 
also relied on

[[Page 16430]]

AFA to determine the countervailable subsidy rate for Fotai for one of 
the programs under investigation. A full discussion of our decision to 
apply AFA is presented in the Decision Memorandum in the section 
``Application of Facts Otherwise Available and AFA to API and Fotai.''

Suspension of Liquidation

    In accordance with section 705(c)(1)(B)(i)(I) of the Act, we have 
calculated an individual rate for Chin Sheng and Fotai, and assigned an 
AFA rate to API. Section 705(c)(5)(A)(i) of the Act states that for 
companies not investigated, we will determine an all others rate equal 
to the weighted average countervailable subsidy rates established for 
exporters and producers individually investigated, excluding any zero 
and de minimis countervailable subsidy rates, and any rates based 
entirely on AFA under section 776 of the Act. Since API's rate is based 
entirely on AFA and since Chin Sheng's rate is de minimis, the all 
others rate is the rate calculated for Fotai.

------------------------------------------------------------------------
                                                            Net Subsidy
                    Producer/Exporter                          Rate
------------------------------------------------------------------------
Advance Polybag Co., Ltd................................   52.56[percnt]
Chin Sheng Company, Ltd.................................    0.44[percnt]
                                                            (de minimis)
Fotai Vietnam Enterprise Corp. And Fotai Enterprise         5.28[percnt]
 Corporation............................................
All Others..............................................    5.28[percnt]
------------------------------------------------------------------------

    Although suspension of liquidation was required on the date of 
publication of the Preliminary Determination, we subsequently 
instructed U.S. Customs and Border Protection, pursuant to section 
703(d) of the Act, to discontinue the suspension of liquidation for 
countervailing duty purposes for subject merchandise entered on or 
after January 2, 2010, but to continue the suspension of liquidation of 
entries made on or after September 4, 2009 through January 1, 2010.
    If the ITC issues a final affirmative injury determination, we will 
issue a countervailing duty order and reinstate the suspension of 
liquidation under section 706(a) of the Act. We will then require a 
cash deposit of estimated countervailing duties for entries of subject 
merchandise in the amounts indicated above, except for Chin Sheng, 
which would be excluded from an order because it has a de minimis rate. 
This exclusion will apply only to subject merchandise both produced and 
exported by Chin Sheng. If the ITC determines that material injury, or 
threat of material injury, does not exist, this proceeding will be 
terminated and all estimated duties deposited or securities posted as a 
result of the suspension of liquidation will be refunded or canceled.

ITC Notification

    In accordance with section 705(d) of the Act, we will notify the 
ITC of our determination. In addition, we are making available to the 
ITC all non-privileged and non-proprietary information related to this 
investigation. We will allow the ITC access to all privileged and 
business proprietary information in our files, provided the ITC 
confirms that it will not disclose such information, either publicly or 
under an Administrative Protective Order (APO), without the written 
consent of the Assistant Secretary for Import Administration.

Return or Destruction of Proprietary Information

    In the event that the ITC issues a final negative injury 
determination, this notice will serve as the only reminder to parties 
subject to an APO of their responsibility concerning the destruction of 
proprietary information disclosed under APO in accordance with 19 CFR 
351.305(a)(3). Timely written notification of the return/destruction of 
APO materials or conversion to judicial protective order is hereby 
requested. Failure to comply with the regulations and terms of an APO 
is a violation which is subject to sanction.
    This determination is issued and published pursuant to sections 
705(d) and 777(i) of the Act.

    Dated: March 25, 2010.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.

Appendix

Issues and Decision Memorandum

I. Summary

II. Background

III. Applicability of the CVD Law to Vietnam

IV. Subsidies Valuation

    A. Period of Investigation
    B. Date of Applicability of CVD Law to Vietnam
    C. Allocation Period
    D. Loan Benchmark and Discount Rates
    E. Attribution of Subsidies - Sales Denominator

V. Application of Facts Otherwise Available and AFA for API and Fotai

    A. API
    B. Fotai
    C. Corroboration

VI. Analysis of Programs

    A. Programs Determined To Be Countervailable
    1. Income Tax Preferences for Encouraged Industries
    2. Income Tax Preferences for FIEs
    3. Land Rent Reduction or Exemption for Exporters
    4. Import Duty Exemptions for Imported Raw Materials for Exported 
Goods
    5. Exemption of Import Duties on Imports of Spare Parts and 
Accessories for Industrial Zone Enterprises
    B. Programs Determined To Be Not Countervailable
    VAT Exemptions for Equipment for FIEs
    C. Programs Determined To Be Terminated
    Export Bonus Program
    D. Programs Determined To Have Been Not Used During the Period of 
Investigation
    1. Government Provision of Water for LTAR in Industrial Zones
    2. Preferential Lending for Exporters
    3. Preferential Lending for the Plastics Industry
    4. Export Promotion Program
    5. New Product Development Program
    6. Income Tax Preferences for Exporters
    7. Income Tax Preferences for FIEs Operating in Encouraged 
Industries
    8. Import Tax Exemptions for FIEs Using Imported Goods to Create 
Fixed Assets
    9. Exemption of Import Duties on Importation of Fixed Assets for 
Industrial Zone Enterprises
    10. Import Tax Exemptions for FIEs Importing Raw Materials
    11. Land Rent Exemption for Manufacturers of Plastic Products
    12. Provision of Land Use Rights in Industrial Zones for LTAR
    13. Land Rent Reduction or Exemption for FIEs
    14. Exemption of Import Duties for Imported Raw Materials for 
Industrial Zone Enterprises
    15. Accelerated Depreciation for Companies in Encouraged Industries 
and Industrial Zones
    16. Losses Carried Forward for Companies in Encouraged Industries 
and Industrial Zones

VII. Analysis of Comments

Comment 1: Simultaneous Imposition of CVD and AD Duties on an NME
Comment 2: The Appropriate De Minimis Rate
Comment 3: Cutoff Date for Countervailing Duties

[[Page 16431]]

Comment 4: Preferential Lending for the Plastics Industry
Comment 5: Chin Sheng's Policy Lending Rate Should Be Recalculated 
Using the Data Collected at Verification
Comment 6: Fotai's Short-Term Loan Data Were Not Verified
Comment 7: Proper Benchmark for Preferential Lending
Comment 8: The Provision of Land at LTAR
Comment 9: The Proper Benchmark for the Provision of Land at LTAR
Comment 10: Duty Exemptions on Imports of Raw Materials Provided to 
Fotai
Comment 11: Chin Sheng's Sales Denominator
Comment 12: Income Tax Programs and Programs Not Used
Comment 13: Application of AFA to API

VIII. Recommendation

[FR Doc. 2010-7395 Filed 3-31-10; 8:45 am]
BILLING CODE 3510-DS-S
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