Polyethylene Retail Carrier Bags From Thailand: Preliminary Results of Antidumping Duty Administrative Review, 53953-53957 [2010-21985]

Download as PDF Federal Register / Vol. 75, No. 170 / Thursday, September 2, 2010 / Notices DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648–XX66 The National Saltwater Angler Registry Program; Designation of Exempted States for Anglers, Spear Fishers, and For-Hire Fishing Vessels National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice. AGENCY: NMFS has designated the states of Alaska, Oregon, California, New York, Connecticut, Delaware, American Samoa and Commonwealth of the Northern Mariana Islands as exempted states for anglers, spear fishers and for-hire fishing vessels. NMFS has designated the states of Virginia and Massachusetts as exempted states for for-hire fishing vessels. DATES: Effective on September 2, 2010. ADDRESSES: Gordon C. Colvin, Fishery Biologist, NMFS ST–12453, 1315 EastWest Highway, Silver Spring, MD 20910. FOR FURTHER INFORMATION CONTACT: Gordon C. Colvin, Fishery Biologist; (301) 713–2367 x175; e-mail: Gordon.Colvin@noaa.gov SUPPLEMENTARY INFORMATION: The final rule implementing the National Saltwater Angler Registry Program, 50 CFR subpart P, was published in the Federal Register on December 30, 2008. The final rule requires persons who are angling, spear fishing or operating a forhire fishing vessel in the U.S. Exclusive Economic Zone or for anadromous species to register annually with NOAA, beginning January 1, 2009. However, persons who are licensed or registered by, or state residents who are not required to register or hold a license issued by, a state that is designated as an exempted state are not required to register with NOAA. The final rule sets forth the requirements for states to be designated as exempted states. Generally, exempted states must agree to provide to NMFS names, addresses, dates of birth and telephone numbers of the persons licensed or registered under a qualifying state license and/or registry program, or to provide catch and effort data from a qualifying regional survey of recreational fishing, and enter into a Memorandum of Agreement with NMFS to formalize the data reporting agreement. NMFS has received proposals for providing license/registry and/or wwoods2 on DSK1DXX6B1PROD with NOTICES_PART 1 SUMMARY: VerDate Mar<15>2010 15:22 Sep 01, 2010 Jkt 220001 regional survey catch and effort data from the states listed below, has determined that the states’ programs qualify for exempted state designation under the provisions of the final rule, and has entered into Memoranda of Agreement with each of the states. Therefore, pursuant to 50 CFR 600.1415(b)(3), notice is hereby given that the following states are designated as exempted states under 50 CFR subpart P: Alaska, Oregon, California, New York, Delaware, Connecticut, American Samoa, Commonwealth of the Northern Mariana Islands. Persons who hold a valid fishing license or registration issued by these exempted states for angling, spear fishing or operating a for-hire fishing vessel in tidal waters are not required to register with NOAA under 50 CFR 600.1405(b). Persons who are residents of these exempted states who are not required to hold a fishing license, or to be registered to fish under the laws of these exempted states, also are not required to register with NOAA. Further, pursuant to 50 CFR 600.1415(b)(3), notice is hereby given that the following states are designated as exempted states only for for-hire fishing vessels: Virginia, Massachusetts. Persons who hold a valid license or registration issued by these exempted states for operating a for-hire fishing vessel in tidal waters are not required to register with NOAA under 50 CFR 600.1405(b). Dated: August 26, 2010. Eric C. Schwaab, Assistant Administrator for Fisheries, National Marine Fisheries Service. [FR Doc. 2010–21987 Filed 9–1–10; 8:45 am] BILLING CODE 3510–22–S DEPARTMENT OF COMMERCE International Trade Administration [A–549–821] Polyethylene Retail Carrier Bags From Thailand: Preliminary Results of Antidumping Duty Administrative Review Import Administration, International Trade Administration, Department of Commerce. SUMMARY: In response to requests from interested parties, the Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on polyethylene retail carrier bags (PRCBs) from Thailand. The review covers five exporters/producers. The period of review (POR) is August 1, 2008, through July 31, 2009. We have preliminarily AGENCY: PO 00000 Frm 00007 Fmt 4703 Sfmt 4703 53953 determined that sales have been made below normal value by companies subject to this review. We invite interested parties to comment on these preliminary results. Parties who submit comments in this review are requested to submit with each argument (1) a statement of the issue and (2) a brief summary of the argument. DATES: Effective Date: September 2, 2010. FOR FURTHER INFORMATION CONTACT: Thomas Schauer or Richard Rimlinger, AD/CVD Operations, Office 5, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482–0410 or (202) 482– 4477, respectively. SUPPLEMENTARY INFORMATION: Background On August 9, 2004, the Department published in the Federal Register the antidumping duty order on PRCBs from Thailand. See Antidumping Duty Order: Polyethylene Retail Carrier Bags From Thailand, 69 FR 48204 (August 9, 2004). On September 22, 2009, we published a notice of initiation of an administrative review of six companies. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 74 FR 48224 (September 22, 2009).1 Since initiation of the review, we selected Landblue and TPBI for individual examination. See Memorandum to Laurie Parkhill dated October 15, 2009. In addition, we extended the due date for completion of these preliminary results. See Polyethylene Retail Carrier Bags from Thailand: Extension of Time Limit for Preliminary Results of Antidumping Duty Administrative Review, 75 FR 23673 (May 4, 2010), and Polyethylene Retail Carrier Bags From Thailand: Extension of Time Limit for Preliminary Results of Antidumping Duty Administrative Review, 75 FR 36359 (June 25, 2010). Finally, we rescinded the review with respect to Landblue. See Polyethylene Retail Carrier Bags from Thailand: Rescission of Antidumping Duty Administrative 1 We stated that the review covers the following companies: C.P. Packaging Co., Ltd., Giant Pack Co., Ltd., Landblue (Thailand) Co., Ltd. (Landblue), Sahachit Watana Plastics Ind. Co., Ltd., Thai Plastic Bags Industries Co., Ltd. (TPBI), and Thantawan Industry Public Co., Ltd. Id., 74 FR at 48226. The Department has determined previously that TPBI, APEC Film Ltd., and Winner’s Pack Co., Ltd., comprise the Thai Plastic Bags Group. See Notice of Final Determination of Sales at Less than Fair Value: Polyethylene Retail Carrier Bags From Thailand, 69 FR 34122, 34123 (June 18, 2004). E:\FR\FM\02SEN1.SGM 02SEN1 53954 Federal Register / Vol. 75, No. 170 / Thursday, September 2, 2010 / Notices Review in Part, 75 FR 34699 (June 18, 2010). The POR is August 1, 2008, through July 31, 2009. We are conducting this review in accordance with section 751(a) of the Tariff Act of 1930, as amended (the Act). wwoods2 on DSK1DXX6B1PROD with NOTICES_PART 1 Scope of the Order The merchandise subject to the antidumping duty order is PRCBs, which may be referred to as t-shirt sacks, merchandise bags, grocery bags, or checkout bags. The subject merchandise is defined as non-sealable sacks and bags with handles (including drawstrings), without zippers or integral extruded closures, with or without gussets, with or without printing, of polyethylene film having a thickness no greater than 0.035 inch (0.889 mm) and no less than 0.00035 inch (0.00889 mm), and with no length or width shorter than 6 inches (15.24 cm) or longer than 40 inches (101.6 cm). The depth of the bag may be shorter than 6 inches but not longer than 40 inches (101.6 cm). PRCBs are typically provided without any consumer packaging and free of charge by retail establishments, e.g., grocery, drug, convenience, department, specialty retail, discount stores, and restaurants, to their customers to package and carry their purchased products. The scope of the order excludes (1) polyethylene bags that are not printed with logos or store names and that are closeable with drawstrings made of polyethylene film and (2) polyethylene bags that are packed in consumer packaging with printing that refers to specific end-uses other than packaging and carrying merchandise from retail establishments, e.g., garbage bags, lawn bags, trash-can liners. As a result of changes to the Harmonized Tariff Schedule of the United States (HTSUS), imports of the subject merchandise are currently classifiable under statistical category 3923.21.0085 of the HTSUS. Furthermore, although the HTSUS subheading is provided for convenience and customs purposes, the written description of the scope of the order is dispositive. Selection of Respondents Due to the large number of companies in the review and the resulting administrative burden to examine each company for which a request had been made and not withdrawn, the Department exercised its authority to limit the number of respondents selected for examination. Where it is not practicable to examine all known exporters/producers of subject merchandise because of the large VerDate Mar<15>2010 15:22 Sep 01, 2010 Jkt 220001 number of such companies, section 777A(c)(2) of the Act allows the Department to limit its examination to either a sample of exporters, producers, or types of products that is statistically valid, based on the information available at the time of selection, or exporters and producers accounting for the largest volume of subject merchandise from the exporting country that can be reasonably examined. Accordingly, based on our analysis of U.S. Customs and Border Protection (CBP) import data on the record of this review (see letters from Laurie Parkhill to Daniel L. Schneiderman and to Victor S. Mroczka dated September 28, 2009) and our available resources, we decided to examine the sales of Landblue and TPBI. See Memorandum to Laurie Parkhill regarding respondent selection, dated October 15, 2009. Because we rescinded the review with respect to Landblue, for the companies which remain under review and which we did not select for individual examination, we have determined the margin based on the weighted-average margin of TPBI, the sole remaining respondent selected for individual examination in this review. Affiliation TPBI has argued that a certain company (Company A) is not affiliated with TPBI although TPBI and Company A mutually own a company in Vietnam that produces PRCBs. See TPBI’s Section A response dated December 9, 2009, at page A–6. We have preliminarily determined that Company A is ‘‘operationally in a position to exercise restraint or direction’’ over TPBI, pursuant to section 771(33)(F) of the Act. Accordingly, we have preliminarily determined that Company A is affiliated with TPBI. Because of the proprietary nature of this analysis, see the Memorandum to Laurie Parkhill entitled ‘‘Polyethylene Retail Carrier Bags from Thailand—Affiliation’’ dated August 26, 2010, for a complete discussion of this determination. Export Price For the price to the United States for TPBI, we used export price (EP) as defined in section 772(a) of the Act. We calculated EP based on the packed freeon-board or delivered price to unaffiliated purchasers in, or for exportation to, the United States. See section 772(c) of the Act. We made deductions for any movement expenses in accordance with section 772(c)(2)(A) of the Act. We made adjustments for duty drawback under the Investment Promotion Act and under Section 19 BIS of the Customs Act claimed by TPBI PO 00000 Frm 00008 Fmt 4703 Sfmt 4703 in accordance with section 772(c)(1)(B) of the Act. For a detailed explanation of these adjustments, see Memorandum entitled ‘‘Polyethylene Retail Carrier Bags from Thailand—Thai Plastic Bags Industries Group Preliminary Results Analysis Memorandum 8/1/08—7/31/ 09,’’ dated August 26, 2010 (Analysis Memo). Comparison-Market Sales Based on a comparison of the aggregate quantity of home-market and U.S. sales and absent any information that a particular market situation in the exporting country did not permit a proper comparison, we determined that the quantity of foreign like product sold by TPBI in Thailand was sufficient to permit a proper comparison with the sales of the subject merchandise to the United States, pursuant to section 773(a) of the Act. TPBI’s quantity of sales in Thailand was greater than five percent of its quantity of sales to the U.S. market. See section 773(a)(1) of the Act. Therefore, in accordance with section 773(a)(1)(B)(i) of the Act, we based normal value on the prices at which the foreign like product was first sold for consumption in Thailand in the usual commercial quantities, in the ordinary course of trade, and at the same level of trade as the U.S. sales. Cost of Production In accordance with section 773(b) of the Act, we disregarded the below-cost sales of TPBI in the most recent administrative review of this company completed before the initiation of this review. See Polyethylene Retail Carrier Bags from Thailand: Final Results of Antidumping Duty Administrative Review and Partial Rescission of Antidumping Duty Administrative Review, 72 FR 64580, 64581 (November 16, 2007). Therefore, we have reasonable grounds to believe or suspect that TPBI’s sales of the foreign like product under consideration for the determination of normal value in this review may have been made at prices below the cost of production (COP) as provided by section 773(b)(2)(A)(ii) of the Act. Accordingly, pursuant to section 773(b)(1) of the Act, we have conducted a COP analysis of TPBI’s sales in Thailand in this review. In accordance with section 773(b)(3) of the Act, we calculated the COP based on the sum of the costs of materials and fabrication employed in producing the foreign like product, the selling, general, and administrative (SG&A) expenses, and all costs and expenses incidental to packing the merchandise. In our COP analysis, we used the home-market sales E:\FR\FM\02SEN1.SGM 02SEN1 Federal Register / Vol. 75, No. 170 / Thursday, September 2, 2010 / Notices wwoods2 on DSK1DXX6B1PROD with NOTICES_PART 1 and COP information TPBI provided in its questionnaire responses. We relied on the COP data submitted by TPBI except as follows: 1. In accordance with the transactions-disregarded rule (section 773(f)(2) of the Act), we adjusted TPBI’s cost of manufacturing (COM) to reflect the market value of printing plates that were purchased from an affiliate. 2. In accordance with the major-input rule (section 773(f)(3) of the Act), we adjusted TPBI’s COM to reflect the market value of certain resin that was purchased from an affiliate. 3. With respect to the allocation of direct labor, variable overhead, and fixed overhead costs, we have preliminarily determined that the methodology reported by TPBI unreasonably distorts the COM for the subject merchandise and the foreign like product. This reported methodology is not only inconsistent with the methodology applied by TPBI in its books and records, it also results in a large variability in costs that have nothing to do with physical differences in the merchandise. Accordingly, pursuant to section 776(a) of the Act, as facts otherwise available, we have weight-averaged these costs on a perunit basis in order to prevent such significant differences in costs between physically similar merchandise. See Statement of Administrative Action, URAA, H. Doc. 316, Vol. 1, 103rd Cong. (1994), at 834–5 (stating that, if the Department determines that costs reported by a respondent ‘‘shifted away costs from the production of the subject merchandise, or the foreign like product,’’ the Department has the authority to ‘‘adjust costs appropriately to ensure that they (the costs) are not artificially reduced’’). 3. We adjusted TPBI’s reported COM to remove an offset claimed by TPBI for revenue associated with the Government of Thailand’s Blue Corner Rebate program. For additional details on these adjustments, see Memorandum to Neal M. Halper entitled ‘‘Cost of Production and Constructed Value Calculation Adjustments for the Preliminary Results’’ dated August 26, 2010 (Cost Memo). Alternative Cost Methodology The Department’s normal practice is to calculate an annual weighted-average cost for the entire period of investigation (POI) or POR. See, e.g., Certain Pasta from Italy: Final Results of Antidumping Duty Administrative Review, 65 FR 77852 (December 13, 2000), and the accompanying Issues and Decision Memorandum at Comment 18. VerDate Mar<15>2010 15:22 Sep 01, 2010 Jkt 220001 We recognize that possible distortions may result if we use our normal annualaverage cost methodology during a period of significant cost changes. In determining whether to deviate from our normal methodology of calculating an annual weighted-average cost, we evaluate the case-specific record evidence using two primary factors: (1) The change in the COM recognized by the respondent during the POI or POR must be deemed significant; (2) the record evidence must indicate that sales prices during the shorter averaging periods (e.g., quarters rather than the POR) could be reasonably linked with the COP during the same shorter averaging periods. See, e.g., Stainless Steel Plate in Coils From Belgium: Final Results of Antidumping Duty Administrative Review, 73 FR 75398 (December 11, 2008), and the accompanying Issues and Decision Memorandum at Comment 4 and Stainless Steel Sheet and Strip in Coils From Mexico; Final Results of Antidumping Duty Administrative Review, 75 FR 6627 (February 10, 2010), and the accompanying Issues and Decision Memorandum at Comment 6. This methodology was recently upheld by the Court of International Trade in SeAH Steel Corporation v. United States, Slip. Op. 10–60 (CIT May 19, 2010), as supported by substantial evidence and otherwise in accordance with law. 1. Significance of Cost Changes Record evidence shows that TPBI experienced significant changes in its total COM during the POR and that these changes were primarily attributable to the price volatility of its raw-material inputs used to produce the merchandise under consideration. Because of the proprietary nature of this analysis, see the Cost Memo for a more complete discussion of this determination. 2. Linkage Between Cost and Sales Information If the Department finds cost changes to be significant in a given investigation or administrative review, the Department evaluates whether there is evidence of linkage between the cost changes and the sales prices for the POI or POR. Our definition of linkage does not require direct traceability between specific sales and their specific production cost but, rather, relies on whether there are elements which would demonstrate a reasonable correlation between the underlying costs and the final sales prices charged by the company. PO 00000 Frm 00009 Fmt 4703 Sfmt 4703 53955 Because we received the data necessary for a determination with respect to the linkage between the cost changes and the sales prices for the POR shortly before the statutory due date for the issuance of these preliminary results, we have not yet reached a conclusion as to whether there is evidence of such linkage in this review. After these preliminary results are published, we will issue our analysis regarding quarterly costs as well as any margin recalculations, if appropriate. Thus, for these preliminary results, we have not applied our quarterly cost methodology but, rather, have applied our standard methodology of using annual costs based on the data TPBI reported, adjusted as described in the ‘‘Cost of Production’’ section above. Results of Cost Test and Cost-Recovery Test After calculating the COP in accordance with section 773(b)(1) of the Act, we tested whether home-market sales of the foreign like product were made at prices below the COP within an extended period of time in substantial quantities and whether such prices permitted the recovery of all costs within a reasonable period of time. See section 773(b)(2) of the Act. We compared model-specific COPs to the reported home-market prices less any applicable movement charges, discounts, and rebates. Pursuant to section 773(b)(2)(C) of the Act, when less than 20 percent of TPBI’s sales of a given product were made at prices less than the COP, we did not disregard any below-cost sales of that product because the below-cost sales were not made in substantial quantities within an extended period of time. When 20 percent or more of TPBI’s sales of a given product during the POR were made at prices less than the COP, we disregarded the below-cost sales because they were made in substantial quantities within an extended period of time pursuant to sections 773(b)(2)(B) and (C) of the Act. Further, in accordance with section 773(b)(2)(D) of the Act, we compared prices to weighted-average per-unit COPs for the POR and determined that these sales were at prices which would not permit recovery of all costs within a reasonable period of time. Because we are applying our standard annualaverage cost test in these preliminary results, we have also applied our standard cost-recovery test with no adjustments. Based on both of these tests, we disregarded certain sales made by TBPI in the home market which were made at below-cost prices. E:\FR\FM\02SEN1.SGM 02SEN1 53956 Federal Register / Vol. 75, No. 170 / Thursday, September 2, 2010 / Notices Model-Matching Methodology In making our comparisons of U.S. sales with sales of the foreign like product in the home market, we used the following methodology. If an identical comparison-market model with identical physical characteristics as listed below was reported, we made comparisons to weighted-average homemarket prices that were based on all sales which passed the COP test of the identical product during a contemporaneous month. If there were no contemporaneous sales of an identical model, we identified the most similar home-market model. To determine the most similar model, we matched the foreign like product based on physical characteristics reported by the respondent in the following order of importance: (1) Quality, (2) bag type, (3) length, (4) width, (5) gusset, (6) thickness, (7) percentage of high-density polyethylene resin, (8) percentage of low-density polyethylene resin, (9) percentage of low linear-density polyethylene resin, (10) percentage of color concentrate, (11) percentage of ink coverage, (12) number of ink colors, and (13) number of sides printed. wwoods2 on DSK1DXX6B1PROD with NOTICES_PART 1 Normal Value We based home-market prices on the packed, ex-factory, or delivered prices to unaffiliated purchasers. When applicable, we made adjustments for differences in packing and for movement expenses in accordance with sections 773(a)(6)(A) and (B) of the Act. We also 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, adjusted as described in the ‘‘Cost of Production’’ section above, and for differences in circumstances of sale in accordance with section 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410. We made circumstance-of-sale adjustments by deducting home-market direct selling expenses from and adding U.S. direct selling expenses to normal value. In accordance with section 773(a)(1)(B)(i) of the Act, we based normal value at the same level of trade as the EP sales. See the ‘‘Level of Trade’’ section below. Constructed Value In accordance with section 773(a)(4) of the Act, we used constructed value as the basis for normal value when there were no contemporaneous comparable sales of the foreign like product in the comparison market. We calculated constructed value in accordance with VerDate Mar<15>2010 15:22 Sep 01, 2010 Jkt 220001 section 773(e) of the Act. We included the cost of materials and fabrication, adjusted as described in the ‘‘Cost of Production’’ section above, SG&A expenses, U.S. packing expenses, and profit in the calculation of constructed value. In accordance with section 773(e)(2)(A) of the Act, we based SG&A expenses and profit on the amounts incurred and realized by TPBI in connection with the production and sale of the foreign like product in the ordinary course of trade for consumption in the home market. When appropriate, we made adjustments to constructed value in accordance with section 773(a)(8) of the Act, 19 CFR 351.410, and 19 CFR 351.412 for circumstance-of-sale differences and level-of-trade differences. We made circumstance-ofsale adjustments by deducting homemarket direct selling expenses from and adding U.S. direct selling expenses to constructed value. We also made adjustments, when applicable, for home-market indirect selling expenses to offset U.S. commissions. We calculated constructed value at the same level of trade as the EP. For a detailed explanation of the calculations, see Analysis Memo. TPBI argued that the Department should not exclude home-market sales that fail the cost test from its calculation of profit for constructed value (CV profit). Citing Atar, S.r.l. v. United States, 637 F. Supp. 2d 1068, 1092 (CIT 2009) (Atar), TPBI asserts that the Court of International Trade has found the Department’s practice of excluding home-market sales that fail the cost test from its calculation of CV profit to be contrary to law. TPBI misunderstands the Court’s analysis in Atar. That decision does not apply to the facts of this case because the Atar decision was made with regard to a statutory provision not at issue here. Section 773(e)(2)(A) of the Act provides that, in calculating CV profit, the Department will only use ‘‘actual amounts’’ incurred ‘‘in the ordinary course of trade’’ in the home market. Section 771(15)(A) of the Act makes clear that home-market sales that failed the cost test are outside the ordinary course of trade. Section 773(e)(2)(B) of the Act, on the other hand, applies if those actual amounts are not available. In the administrative review challenged in Atar, Notice of Preliminary Results and Partial Rescission of Antidumping Duty Administrative Review: Ninth Administrative Review of the Antidumping Duty Order on Certain Pasta from Italy, 71 FR 45017 (August 8, 2006) (unchanged in final; 72 FR 7011, February 14, 2007) (Pasta from PO 00000 Frm 00010 Fmt 4703 Sfmt 4703 Italy), the respondent did not have a viable home market so the Department calculated CV profit pursuant to section 773(e)(2)(B) of the Act. At issue in Atar was the fact that there is no ‘‘ordinary course of trade’’ language in section 773(e)(2)(B) of the Act yet the Department nonetheless excluded sales that failed the cost test from its calculation of CV profit. The plaintiff, Atar, argued that the Department must calculate these respondent companies’ profit rates based on all sales, above and below cost, for purposes of calculating CV profit pursuant to section 773(e)(2)(B) of the Act. The Court agreed with Atar, finding that the Department erred in excluding below-cost sales in its calculation of CV profit because such a requirement only applies when a viable home market exists, pursuant to section 773(e)(2)(A) of the Act. See Atar, 637 F. Supp. 2d 1068, 1092 (CIT 2009).2 In this review, by contrast, TPBI does have a viable home market and, therefore, we can determine selling expenses and profit under section 773(e)(2)(A) of the Act. Accordingly, consistent with that provision, we have used only sales made within the ordinary course of trade in calculating CV profit. Level of Trade To the extent practicable, we determined normal value for sales at the same level of trade as the U.S. sales. The normal-value level of trade is that of the starting-price sales in the home market. When normal value is based on constructed value, the level of trade is that of the sales from which we derived SG&A and profit. To determine whether home-market sales are at a different level of trade than 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. This analysis revealed that there were not any significant differences in selling functions between different channels of distribution or customer type in either the home or U.S. markets. Therefore, we determined that TPBI made all home-market sales at one level of trade. Moreover, we determined that all home-market sales by TPBI were made at the same level of trade as its U.S. sales. For a more detailed discussion, see Analysis Memo. Accordingly, we compared TPBI’s U.S. sales to its home-market sales, all of 2 A similar decision to reject the Department’s interpretation under section 773(e)(2)(B) of the Act was reversed in Thai I–Mei Frozen Foods Co., Ltd., v. United States, 2010 U.S. App. LEXIS 16677 (Fed. Cir. 2010). E:\FR\FM\02SEN1.SGM 02SEN1 Federal Register / Vol. 75, No. 170 / Thursday, September 2, 2010 / Notices which were made at the same level of trade. Preliminary Results of Review wwoods2 on DSK1DXX6B1PROD with NOTICES_PART 1 As a result of our review, we preliminarily determine that the following percentage weighted-average dumping margins on PRCBs from Thailand exist for the period August 1, 2008, through July 31, 2009: the results of its analysis of issues raised in any such written briefs or at the hearing, if held, not later than 120 days after the date of publication of this notice. See section 751(a)(3)(A) of the Act. Assessment Rates The Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries. In accordance with 19 CFR 351.212(b)(1), we have Percent Producer/exporter margin calculated for TPBI an importer (or customer)-specific assessment value for TPBI .......................................... 20.41 merchandise subject to this review by C.P. Packaging Co., Ltd. .......... 20.41 dividing the total dumping margin Giant Pack Co., Ltd. ................. 20.41 (calculated as the difference between Sahachit Watana Plastics Ind. Co., Ltd. ................................ 20.41 normal value and EP) for each importer or customer by the total kilograms the Thantawan Industry Public Co., Ltd. ........................................ 20.41 exporter sold to that importer or customer. We will instruct CBP to assess the resulting per-kilogram amount Comments against each kilogram of merchandise in We will disclose the calculations used each of that importer’s/customer’s in our analysis to interested parties to entries during the POR. this review within five days of the date The Department clarified its of publication of this notice. See 19 CFR ‘‘automatic assessment’’ regulation on 351.224(b). Any interested party may May 6, 2003. This clarification applies request a hearing within 30 days of the to entries of subject merchandise during date of publication of this notice. See 19 the POR produced by TPBI for which it CFR 351.310. Interested parties who did not know its merchandise was wish to request a hearing or to destined for the United States. In such participate in a hearing if a hearing is instances, we will instruct CBP to requested must submit a written request liquidate unreviewed entries at the allto the Assistant Secretary for Import others rate if there is no rate for the Administration within 30 days of the intermediate company(ies) involved in date of publication of this notice. the transaction. For a full discussion of Requests should contain the following this clarification, see Antidumping and information: (1) The party’s name, Countervailing Duty Proceedings: address, and telephone number; (2) the Assessment of Antidumping Duties, 68 number of participants; (3) a list of FR 23954 (May 6, 2003). issues to be discussed. See 19 CFR For the companies which were not 351.310(c). selected for individual examination, we Issues raised in the hearing will be will instruct CBP to apply the rates limited to those raised in the case briefs. listed above to all entries of subject See 19 CFR 351.310(c). Case briefs from merchandise produced and/or exported interested parties may be submitted not by such firms. later than seven (7) days after the date We intend to issue liquidation on which we issue our determination instructions to CBP 15 days after regarding quarterly costs. See 19 CFR publication of the final results of 351.309(c)(1)(ii). Rebuttal briefs from review. interested parties, limited to the issues Cash-Deposit Requirements raised in the case briefs, may be submitted not later than five days after The following deposit requirements the time limit for filing the case briefs will be effective upon publication of the or comments. See 19 CFR 351.309(d)(1). notice of final results of administrative If requested, any hearing will be held review for all shipments of PRCBs from two days after the scheduled date for Thailand entered, or withdrawn from submission of rebuttal briefs. See 19 warehouse, for consumption on or after CFR 351.310(d). Parties who submit the date of publication, as provided by case briefs or rebuttal briefs in this section 751(a)(2) of the Act: (1) The review are requested to submit with cash-deposit rates for the reviewed each argument a statement of the issue, companies will be the rates established a summary of the arguments not in the final results of review; (2) for exceeding five pages, and a table of previously reviewed or investigated statutes, regulations, and cases cited. companies not listed above, the cashSee 19 CFR 351.309(c)(2). The deposit rate will continue to be the Department will issue the final results company-specific rate published for the of this administrative review, including most recent period; (3) if the exporter is VerDate Mar<15>2010 15:22 Sep 01, 2010 Jkt 220001 PO 00000 Frm 00011 Fmt 4703 Sfmt 4703 53957 not a firm covered in this review, a prior review, or the less-than-fair-value investigation but the manufacturer is, the cash-deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; (4) if neither the exporter nor the manufacturer has its own rate, the cash-deposit rate will be 2.80 percent, the all-others rate for this proceeding. These deposit requirements, when imposed, shall remain in effect until further notice. Notification to Importer This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Department’s presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties. These preliminary results of administrative review are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act. Dated: August 26, 2010. Ronald K. Lorentzen, Deputy Assistant Secretary for Import Administration. [FR Doc. 2010–21985 Filed 9–1–10; 8:45 am] BILLING CODE 3510–DS–P COMMISSION OF FINE ARTS Notice of Meeting The next meeting of the U.S. Commission of Fine Arts is scheduled for 16 September 2010, at 10 a.m. in the Commission offices at the National Building Museum, Suite 312, Judiciary Square, 401 F Street, NW., Washington, DC 20001–2728. Items of discussion may include buildings, parks and memorials. Draft agendas and additional information regarding the Commission are available on our Web site: https:// www.cfa.gov. Inquiries regarding the agenda and requests to submit written or oral statements should be addressed to Thomas Luebke, Secretary, U.S. Commission of Fine Arts, at the above address; by e-mailing staff@cfa.gov; or by calling 202–504–2200. Individuals requiring sign language interpretation for the hearing impaired should contact the Secretary at least 10 days before the meeting date. E:\FR\FM\02SEN1.SGM 02SEN1

Agencies

[Federal Register Volume 75, Number 170 (Thursday, September 2, 2010)]
[Notices]
[Pages 53953-53957]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-21985]


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

DEPARTMENT OF COMMERCE

International Trade Administration

[A-549-821]


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

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.
SUMMARY: In response to requests from interested parties, the 
Department of Commerce (the Department) is conducting an administrative 
review of the antidumping duty order on polyethylene retail carrier 
bags (PRCBs) from Thailand. The review covers five exporters/producers. 
The period of review (POR) is August 1, 2008, through July 31, 2009. We 
have preliminarily determined that sales have been made below normal 
value by companies subject to this review.
    We invite interested parties to comment on these preliminary 
results. Parties who submit comments in this review are requested to 
submit with each argument (1) a statement of the issue and (2) a brief 
summary of the argument.

DATES: Effective Date: September 2, 2010.

FOR FURTHER INFORMATION CONTACT: Thomas Schauer or Richard Rimlinger, 
AD/CVD Operations, Office 5, Import Administration, International Trade 
Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-
0410 or (202) 482-4477, respectively.

SUPPLEMENTARY INFORMATION: 

Background

    On August 9, 2004, the Department published in the Federal Register 
the antidumping duty order on PRCBs from Thailand. See Antidumping Duty 
Order: Polyethylene Retail Carrier Bags From Thailand, 69 FR 48204 
(August 9, 2004). On September 22, 2009, we published a notice of 
initiation of an administrative review of six companies. See Initiation 
of Antidumping and Countervailing Duty Administrative Reviews and 
Request for Revocation in Part, 74 FR 48224 (September 22, 2009).\1\ 
Since initiation of the review, we selected Landblue and TPBI for 
individual examination. See Memorandum to Laurie Parkhill dated October 
15, 2009. In addition, we extended the due date for completion of these 
preliminary results. See Polyethylene Retail Carrier Bags from 
Thailand: Extension of Time Limit for Preliminary Results of 
Antidumping Duty Administrative Review, 75 FR 23673 (May 4, 2010), and 
Polyethylene Retail Carrier Bags From Thailand: Extension of Time Limit 
for Preliminary Results of Antidumping Duty Administrative Review, 75 
FR 36359 (June 25, 2010). Finally, we rescinded the review with respect 
to Landblue. See Polyethylene Retail Carrier Bags from Thailand: 
Rescission of Antidumping Duty Administrative

[[Page 53954]]

Review in Part, 75 FR 34699 (June 18, 2010).
---------------------------------------------------------------------------

    \1\ We stated that the review covers the following companies: 
C.P. Packaging Co., Ltd., Giant Pack Co., Ltd., Landblue (Thailand) 
Co., Ltd. (Landblue), Sahachit Watana Plastics Ind. Co., Ltd., Thai 
Plastic Bags Industries Co., Ltd. (TPBI), and Thantawan Industry 
Public Co., Ltd. Id., 74 FR at 48226. The Department has determined 
previously that TPBI, APEC Film Ltd., and Winner's Pack Co., Ltd., 
comprise the Thai Plastic Bags Group. See Notice of Final 
Determination of Sales at Less than Fair Value: Polyethylene Retail 
Carrier Bags From Thailand, 69 FR 34122, 34123 (June 18, 2004).
---------------------------------------------------------------------------

    The POR is August 1, 2008, through July 31, 2009. We are conducting 
this review in accordance with section 751(a) of the Tariff Act of 
1930, as amended (the Act).

Scope of the Order

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

Selection of Respondents

    Due to the large number of companies in the review and the 
resulting administrative burden to examine each company for which a 
request had been made and not withdrawn, the Department exercised its 
authority to limit the number of respondents selected for examination. 
Where it is not practicable to examine all known exporters/producers of 
subject merchandise because of the large number of such companies, 
section 777A(c)(2) of the Act allows the Department to limit its 
examination to either a sample of exporters, producers, or types of 
products that is statistically valid, based on the information 
available at the time of selection, or exporters and producers 
accounting for the largest volume of subject merchandise from the 
exporting country that can be reasonably examined.
    Accordingly, based on our analysis of U.S. Customs and Border 
Protection (CBP) import data on the record of this review (see letters 
from Laurie Parkhill to Daniel L. Schneiderman and to Victor S. Mroczka 
dated September 28, 2009) and our available resources, we decided to 
examine the sales of Landblue and TPBI. See Memorandum to Laurie 
Parkhill regarding respondent selection, dated October 15, 2009.
    Because we rescinded the review with respect to Landblue, for the 
companies which remain under review and which we did not select for 
individual examination, we have determined the margin based on the 
weighted-average margin of TPBI, the sole remaining respondent selected 
for individual examination in this review.

Affiliation

    TPBI has argued that a certain company (Company A) is not 
affiliated with TPBI although TPBI and Company A mutually own a company 
in Vietnam that produces PRCBs. See TPBI's Section A response dated 
December 9, 2009, at page A-6. We have preliminarily determined that 
Company A is ``operationally in a position to exercise restraint or 
direction'' over TPBI, pursuant to section 771(33)(F) of the Act. 
Accordingly, we have preliminarily determined that Company A is 
affiliated with TPBI. Because of the proprietary nature of this 
analysis, see the Memorandum to Laurie Parkhill entitled ``Polyethylene 
Retail Carrier Bags from Thailand--Affiliation'' dated August 26, 2010, 
for a complete discussion of this determination.

Export Price

    For the price to the United States for TPBI, we used export price 
(EP) as defined in section 772(a) of the Act. We calculated EP based on 
the packed free-on-board or delivered price to unaffiliated purchasers 
in, or for exportation to, the United States. See section 772(c) of the 
Act. We made deductions for any movement expenses in accordance with 
section 772(c)(2)(A) of the Act. We made adjustments for duty drawback 
under the Investment Promotion Act and under Section 19 BIS of the 
Customs Act claimed by TPBI in accordance with section 772(c)(1)(B) of 
the Act. For a detailed explanation of these adjustments, see 
Memorandum entitled ``Polyethylene Retail Carrier Bags from Thailand--
Thai Plastic Bags Industries Group Preliminary Results Analysis 
Memorandum 8/1/08--7/31/09,'' dated August 26, 2010 (Analysis Memo).

Comparison-Market Sales

    Based on a comparison of the aggregate quantity of home-market and 
U.S. sales and absent any information that a particular market 
situation in the exporting country did not permit a proper comparison, 
we determined that the quantity of foreign like product sold by TPBI in 
Thailand was sufficient to permit a proper comparison with the sales of 
the subject merchandise to the United States, pursuant to section 
773(a) of the Act. TPBI's quantity of sales in Thailand was greater 
than five percent of its quantity of sales to the U.S. market. See 
section 773(a)(1) of the Act. Therefore, in accordance with section 
773(a)(1)(B)(i) of the Act, we based normal value on the prices at 
which the foreign like product was first sold for consumption in 
Thailand in the usual commercial quantities, in the ordinary course of 
trade, and at the same level of trade as the U.S. sales.

Cost of Production

    In accordance with section 773(b) of the Act, we disregarded the 
below-cost sales of TPBI in the most recent administrative review of 
this company completed before the initiation of this review. See 
Polyethylene Retail Carrier Bags from Thailand: Final Results of 
Antidumping Duty Administrative Review and Partial Rescission of 
Antidumping Duty Administrative Review, 72 FR 64580, 64581 (November 
16, 2007). Therefore, we have reasonable grounds to believe or suspect 
that TPBI's sales of the foreign like product under consideration for 
the determination of normal value in this review may have been made at 
prices below the cost of production (COP) as provided by section 
773(b)(2)(A)(ii) of the Act. Accordingly, pursuant to section 773(b)(1) 
of the Act, we have conducted a COP analysis of TPBI's sales in 
Thailand in this review.
    In accordance with section 773(b)(3) of the Act, we calculated the 
COP based on the sum of the costs of materials and fabrication employed 
in producing the foreign like product, the selling, general, and 
administrative (SG&A) expenses, and all costs and expenses incidental 
to packing the merchandise. In our COP analysis, we used the home-
market sales

[[Page 53955]]

and COP information TPBI provided in its questionnaire responses.
    We relied on the COP data submitted by TPBI except as follows:
    1. In accordance with the transactions-disregarded rule (section 
773(f)(2) of the Act), we adjusted TPBI's cost of manufacturing (COM) 
to reflect the market value of printing plates that were purchased from 
an affiliate.
    2. In accordance with the major-input rule (section 773(f)(3) of 
the Act), we adjusted TPBI's COM to reflect the market value of certain 
resin that was purchased from an affiliate.
    3. With respect to the allocation of direct labor, variable 
overhead, and fixed overhead costs, we have preliminarily determined 
that the methodology reported by TPBI unreasonably distorts the COM for 
the subject merchandise and the foreign like product. This reported 
methodology is not only inconsistent with the methodology applied by 
TPBI in its books and records, it also results in a large variability 
in costs that have nothing to do with physical differences in the 
merchandise. Accordingly, pursuant to section 776(a) of the Act, as 
facts otherwise available, we have weight-averaged these costs on a 
per-unit basis in order to prevent such significant differences in 
costs between physically similar merchandise. See Statement of 
Administrative Action, URAA, H. Doc. 316, Vol. 1, 103rd Cong. (1994), 
at 834-5 (stating that, if the Department determines that costs 
reported by a respondent ``shifted away costs from the production of 
the subject merchandise, or the foreign like product,'' the Department 
has the authority to ``adjust costs appropriately to ensure that they 
(the costs) are not artificially reduced'').
    3. We adjusted TPBI's reported COM to remove an offset claimed by 
TPBI for revenue associated with the Government of Thailand's Blue 
Corner Rebate program.
    For additional details on these adjustments, see Memorandum to Neal 
M. Halper entitled ``Cost of Production and Constructed Value 
Calculation Adjustments for the Preliminary Results'' dated August 26, 
2010 (Cost Memo).

Alternative Cost Methodology

    The Department's normal practice is to calculate an annual 
weighted-average cost for the entire period of investigation (POI) or 
POR. See, e.g., Certain Pasta from Italy: Final Results of Antidumping 
Duty Administrative Review, 65 FR 77852 (December 13, 2000), and the 
accompanying Issues and Decision Memorandum at Comment 18. We recognize 
that possible distortions may result if we use our normal annual-
average cost methodology during a period of significant cost changes. 
In determining whether to deviate from our normal methodology of 
calculating an annual weighted-average cost, we evaluate the case-
specific record evidence using two primary factors: (1) The change in 
the COM recognized by the respondent during the POI or POR must be 
deemed significant; (2) the record evidence must indicate that sales 
prices during the shorter averaging periods (e.g., quarters rather than 
the POR) could be reasonably linked with the COP during the same 
shorter averaging periods. See, e.g., Stainless Steel Plate in Coils 
From Belgium: Final Results of Antidumping Duty Administrative Review, 
73 FR 75398 (December 11, 2008), and the accompanying Issues and 
Decision Memorandum at Comment 4 and Stainless Steel Sheet and Strip in 
Coils From Mexico; Final Results of Antidumping Duty Administrative 
Review, 75 FR 6627 (February 10, 2010), and the accompanying Issues and 
Decision Memorandum at Comment 6. This methodology was recently upheld 
by the Court of International Trade in SeAH Steel Corporation v. United 
States, Slip. Op. 10-60 (CIT May 19, 2010), as supported by substantial 
evidence and otherwise in accordance with law.

1. Significance of Cost Changes

    Record evidence shows that TPBI experienced significant changes in 
its total COM during the POR and that these changes were primarily 
attributable to the price volatility of its raw-material inputs used to 
produce the merchandise under consideration. Because of the proprietary 
nature of this analysis, see the Cost Memo for a more complete 
discussion of this determination.

2. Linkage Between Cost and Sales Information

    If the Department finds cost changes to be significant in a given 
investigation or administrative review, the Department evaluates 
whether there is evidence of linkage between the cost changes and the 
sales prices for the POI or POR. Our definition of linkage does not 
require direct traceability between specific sales and their specific 
production cost but, rather, relies on whether there are elements which 
would demonstrate a reasonable correlation between the underlying costs 
and the final sales prices charged by the company.
    Because we received the data necessary for a determination with 
respect to the linkage between the cost changes and the sales prices 
for the POR shortly before the statutory due date for the issuance of 
these preliminary results, we have not yet reached a conclusion as to 
whether there is evidence of such linkage in this review. After these 
preliminary results are published, we will issue our analysis regarding 
quarterly costs as well as any margin recalculations, if appropriate. 
Thus, for these preliminary results, we have not applied our quarterly 
cost methodology but, rather, have applied our standard methodology of 
using annual costs based on the data TPBI reported, adjusted as 
described in the ``Cost of Production'' section above.

Results of Cost Test and Cost-Recovery Test

    After calculating the COP in accordance with section 773(b)(1) of 
the Act, we tested whether home-market sales of the foreign like 
product were made at prices below the COP within an extended period of 
time in substantial quantities and whether such prices permitted the 
recovery of all costs within a reasonable period of time. See section 
773(b)(2) of the Act. We compared model-specific COPs to the reported 
home-market prices less any applicable movement charges, discounts, and 
rebates.
    Pursuant to section 773(b)(2)(C) of the Act, when less than 20 
percent of TPBI's sales of a given product were made at prices less 
than the COP, we did not disregard any below-cost sales of that product 
because the below-cost sales were not made in substantial quantities 
within an extended period of time. When 20 percent or more of TPBI's 
sales of a given product during the POR were made at prices less than 
the COP, we disregarded the below-cost sales because they were made in 
substantial quantities within an extended period of time pursuant to 
sections 773(b)(2)(B) and (C) of the Act.
    Further, in accordance with section 773(b)(2)(D) of the Act, we 
compared prices to weighted-average per-unit COPs for the POR and 
determined that these sales were at prices which would not permit 
recovery of all costs within a reasonable period of time. Because we 
are applying our standard annual-average cost test in these preliminary 
results, we have also applied our standard cost-recovery test with no 
adjustments. Based on both of these tests, we disregarded certain sales 
made by TBPI in the home market which were made at below-cost prices.

[[Page 53956]]

Model-Matching Methodology

    In making our comparisons of U.S. sales with sales of the foreign 
like product in the home market, we used the following methodology. If 
an identical comparison-market model with identical physical 
characteristics as listed below was reported, we made comparisons to 
weighted-average home-market prices that were based on all sales which 
passed the COP test of the identical product during a contemporaneous 
month. If there were no contemporaneous sales of an identical model, we 
identified the most similar home-market model. To determine the most 
similar model, we matched the foreign like product based on physical 
characteristics reported by the respondent in the following order of 
importance: (1) Quality, (2) bag type, (3) length, (4) width, (5) 
gusset, (6) thickness, (7) percentage of high-density polyethylene 
resin, (8) percentage of low-density polyethylene resin, (9) percentage 
of low linear-density polyethylene resin, (10) percentage of color 
concentrate, (11) percentage of ink coverage, (12) number of ink 
colors, and (13) number of sides printed.

Normal Value

    We based home-market prices on the packed, ex-factory, or delivered 
prices to unaffiliated purchasers. When applicable, we made adjustments 
for differences in packing and for movement expenses in accordance with 
sections 773(a)(6)(A) and (B) of the Act. We also 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, adjusted as described in the ``Cost of 
Production'' section above, and for differences in circumstances of 
sale in accordance with section 773(a)(6)(C)(iii) of the Act and 19 CFR 
351.410. We made circumstance-of-sale adjustments by deducting home-
market direct selling expenses from and adding U.S. direct selling 
expenses to normal value.
    In accordance with section 773(a)(1)(B)(i) of the Act, we based 
normal value at the same level of trade as the EP sales. See the 
``Level of Trade'' section below.

Constructed Value

    In accordance with section 773(a)(4) of the Act, we used 
constructed value as the basis for normal value when there were no 
contemporaneous comparable sales of the foreign like product in the 
comparison market. We calculated constructed value in accordance with 
section 773(e) of the Act. We included the cost of materials and 
fabrication, adjusted as described in the ``Cost of Production'' 
section above, SG&A expenses, U.S. packing expenses, and profit in the 
calculation of constructed value. In accordance with section 
773(e)(2)(A) of the Act, we based SG&A expenses and profit on the 
amounts incurred and realized by TPBI in connection with the production 
and sale of the foreign like product in the ordinary course of trade 
for consumption in the home market.
    When appropriate, we made adjustments to constructed value in 
accordance with section 773(a)(8) of the Act, 19 CFR 351.410, and 19 
CFR 351.412 for circumstance-of-sale differences and level-of-trade 
differences. We made circumstance-of-sale adjustments by deducting 
home-market direct selling expenses from and adding U.S. direct selling 
expenses to constructed value. We also made adjustments, when 
applicable, for home-market indirect selling expenses to offset U.S. 
commissions. We calculated constructed value at the same level of trade 
as the EP. For a detailed explanation of the calculations, see Analysis 
Memo.
    TPBI argued that the Department should not exclude home-market 
sales that fail the cost test from its calculation of profit for 
constructed value (CV profit). Citing Atar, S.r.l. v. United States, 
637 F. Supp. 2d 1068, 1092 (CIT 2009) (Atar), TPBI asserts that the 
Court of International Trade has found the Department's practice of 
excluding home-market sales that fail the cost test from its 
calculation of CV profit to be contrary to law. TPBI misunderstands the 
Court's analysis in Atar. That decision does not apply to the facts of 
this case because the Atar decision was made with regard to a statutory 
provision not at issue here.
    Section 773(e)(2)(A) of the Act provides that, in calculating CV 
profit, the Department will only use ``actual amounts'' incurred ``in 
the ordinary course of trade'' in the home market. Section 771(15)(A) 
of the Act makes clear that home-market sales that failed the cost test 
are outside the ordinary course of trade. Section 773(e)(2)(B) of the 
Act, on the other hand, applies if those actual amounts are not 
available. In the administrative review challenged in Atar, Notice of 
Preliminary Results and Partial Rescission of Antidumping Duty 
Administrative Review: Ninth Administrative Review of the Antidumping 
Duty Order on Certain Pasta from Italy, 71 FR 45017 (August 8, 2006) 
(unchanged in final; 72 FR 7011, February 14, 2007) (Pasta from Italy), 
the respondent did not have a viable home market so the Department 
calculated CV profit pursuant to section 773(e)(2)(B) of the Act.
    At issue in Atar was the fact that there is no ``ordinary course of 
trade'' language in section 773(e)(2)(B) of the Act yet the Department 
nonetheless excluded sales that failed the cost test from its 
calculation of CV profit. The plaintiff, Atar, argued that the 
Department must calculate these respondent companies' profit rates 
based on all sales, above and below cost, for purposes of calculating 
CV profit pursuant to section 773(e)(2)(B) of the Act. The Court agreed 
with Atar, finding that the Department erred in excluding below-cost 
sales in its calculation of CV profit because such a requirement only 
applies when a viable home market exists, pursuant to section 
773(e)(2)(A) of the Act. See Atar, 637 F. Supp. 2d 1068, 1092 (CIT 
2009).\2\
---------------------------------------------------------------------------

    \2\ A similar decision to reject the Department's interpretation 
under section 773(e)(2)(B) of the Act was reversed in Thai I-Mei 
Frozen Foods Co., Ltd., v. United States, 2010 U.S. App. LEXIS 16677 
(Fed. Cir. 2010).
---------------------------------------------------------------------------

    In this review, by contrast, TPBI does have a viable home market 
and, therefore, we can determine selling expenses and profit under 
section 773(e)(2)(A) of the Act. Accordingly, consistent with that 
provision, we have used only sales made within the ordinary course of 
trade in calculating CV profit.

Level of Trade

    To the extent practicable, we determined normal value for sales at 
the same level of trade as the U.S. sales. The normal-value level of 
trade is that of the starting-price sales in the home market. When 
normal value is based on constructed value, the level of trade is that 
of the sales from which we derived SG&A and profit.
    To determine whether home-market sales are at a different level of 
trade than 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. This analysis revealed that there were 
not any significant differences in selling functions between different 
channels of distribution or customer type in either the home or U.S. 
markets. Therefore, we determined that TPBI made all home-market sales 
at one level of trade. Moreover, we determined that all home-market 
sales by TPBI were made at the same level of trade as its U.S. sales. 
For a more detailed discussion, see Analysis Memo. Accordingly, we 
compared TPBI's U.S. sales to its home-market sales, all of

[[Page 53957]]

which were made at the same level of trade.

Preliminary Results of Review

    As a result of our review, we preliminarily determine that the 
following percentage weighted-average dumping margins on PRCBs from 
Thailand exist for the period August 1, 2008, through July 31, 2009:

------------------------------------------------------------------------
                                                               Percent
                     Producer/exporter                          margin
------------------------------------------------------------------------
TPBI.......................................................        20.41
C.P. Packaging Co., Ltd....................................        20.41
Giant Pack Co., Ltd........................................        20.41
Sahachit Watana Plastics Ind. Co., Ltd.....................        20.41
Thantawan Industry Public Co., Ltd.........................        20.41
------------------------------------------------------------------------

Comments

    We will disclose the calculations used in our analysis to 
interested parties to this review within five days of the date of 
publication of this notice. See 19 CFR 351.224(b). Any interested party 
may request a hearing within 30 days of the date of publication of this 
notice. See 19 CFR 351.310. Interested parties who wish to request a 
hearing or to participate in a hearing if a hearing is requested must 
submit a written request to the Assistant Secretary for Import 
Administration within 30 days of the date of publication of this 
notice. Requests should contain the following information: (1) The 
party's name, address, and telephone number; (2) the number of 
participants; (3) a list of issues to be discussed. See 19 CFR 
351.310(c).
    Issues raised in the hearing will be limited to those raised in the 
case briefs. See 19 CFR 351.310(c). Case briefs from interested parties 
may be submitted not later than seven (7) days after the date on which 
we issue our determination regarding quarterly costs. See 19 CFR 
351.309(c)(1)(ii). Rebuttal briefs from interested parties, limited to 
the issues raised in the case briefs, may be submitted not later than 
five days after the time limit for filing the case briefs or comments. 
See 19 CFR 351.309(d)(1). If requested, any hearing will be held two 
days after the scheduled date for submission of rebuttal briefs. See 19 
CFR 351.310(d). Parties who submit case briefs or rebuttal briefs in 
this review are requested to submit with each argument a statement of 
the issue, a summary of the arguments not exceeding five pages, and a 
table of statutes, regulations, and cases cited. See 19 CFR 
351.309(c)(2). The Department will issue the final results of this 
administrative review, including the results of its analysis of issues 
raised in any such written briefs or at the hearing, if held, not later 
than 120 days after the date of publication of this notice. See section 
751(a)(3)(A) of the Act.

Assessment Rates

    The Department shall determine, and CBP shall assess, antidumping 
duties on all appropriate entries. In accordance with 19 CFR 
351.212(b)(1), we have calculated for TPBI an importer (or customer)-
specific assessment value for merchandise subject to this review by 
dividing the total dumping margin (calculated as the difference between 
normal value and EP) for each importer or customer by the total 
kilograms the exporter sold to that importer or customer. We will 
instruct CBP to assess the resulting per-kilogram amount against each 
kilogram of merchandise in each of that importer's/customer's entries 
during the POR.
    The Department clarified its ``automatic assessment'' regulation on 
May 6, 2003. This clarification applies to entries of subject 
merchandise during the POR produced by TPBI for which it did not know 
its merchandise was destined for the United States. In such instances, 
we will instruct CBP to liquidate unreviewed entries at the all-others 
rate if there is no rate for the intermediate company(ies) involved in 
the transaction. For a full discussion of this clarification, see 
Antidumping and Countervailing Duty Proceedings: Assessment of 
Antidumping Duties, 68 FR 23954 (May 6, 2003).
    For the companies which were not selected for individual 
examination, we will instruct CBP to apply the rates listed above to 
all entries of subject merchandise produced and/or exported by such 
firms.
    We intend to issue liquidation instructions to CBP 15 days after 
publication of the final results of review.

Cash-Deposit Requirements

    The following deposit requirements will be effective upon 
publication of the notice of final results of administrative review for 
all shipments of PRCBs from Thailand entered, or withdrawn from 
warehouse, for consumption on or after the date of publication, as 
provided by section 751(a)(2) of the Act: (1) The cash-deposit rates 
for the reviewed companies will be the rates established in the final 
results of review; (2) for previously reviewed or investigated 
companies not listed above, the cash-deposit rate will continue to be 
the company-specific rate published for the most recent period; (3) if 
the exporter is not a firm covered in this review, a prior review, or 
the less-than-fair-value investigation but the manufacturer is, the 
cash-deposit rate will be the rate established for the most recent 
period for the manufacturer of the merchandise; (4) if neither the 
exporter nor the manufacturer has its own rate, the cash-deposit rate 
will be 2.80 percent, the all-others rate for this proceeding. These 
deposit requirements, when imposed, shall remain in effect until 
further notice.

Notification to Importer

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

    Dated: August 26, 2010.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 2010-21985 Filed 9-1-10; 8:45 am]
BILLING CODE 3510-DS-P