Laminated Woven Sacks From the People's Republic of China: Preliminary Results of the Second Administrative Review, 81218-81221 [2010-32475]

Agencies

• DEPARTMENT OF COMMERCE
• International Trade Administration

[Federal Register Volume 75, Number 247 (Monday, December 27, 2010)]
[Notices]
[Pages 81218-81221]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-32475]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-916]


Laminated Woven Sacks From the People's Republic of China: 
Preliminary Results of the Second Administrative Review

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

SUMMARY: The Department of Commerce (``the Department'') is currently 
conducting an administrative review of the antidumping duty order on 
laminated woven sacks (``LWS'') from the People's Republic of China 
(``PRC'') covering the period August 1, 2009, through July 31, 2010. 
This review covers imports of subject merchandise from one 
manufacturer/exporter: Zibo Aifudi Plastic Packaging Co., Ltd. 
(``Aifudi''). If these preliminary results are adopted in our final 
results of review, we will instruct U.S. Customs and Border Protection 
(``CBP'') to assess antidumping duties on all appropriate entries in 
accordance with these results. We invite interested parties to comment 
on these preliminary review results and will issue the final review 
results no later than 120 days from the date of publication of this 
notice.

DATES: Effective Date: December 27, 2010.

FOR FURTHER INFORMATION CONTACT: Jamie Blair-Walker, AD/CVD Operations, 
Office 9, Import Administration, International Trade Administration, 
U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., 
Washington, DC 20230; telephone: (202) 482-2615.

SUPPLEMENTARY INFORMATION: 

Background

    On August 7, 2008, the Department published in the Federal Register 
the antidumping duty order on LWS from the PRC. See Notice of 
Antidumping Duty Order: Laminated Woven Sacks From the People's 
Republic of China, 73 FR 45941 (August 7, 2008).
    On August 26, 2010 and August 31, 2010, respectively, Aifudi and 
Petitioners \1\ submitted a timely request for an administrative 
review. On September 29, 2010, in response to Aifudi's and Petitioners' 
requests and in accordance with section 751(a)(1) of the Tariff Act of 
1930, as amended (the ``Act''), and 19 CFR 351.213(b), the Department 
initiated the second administrative review of LWS from the PRC. See 
Initiation of Antidumping and Countervailing Duty Administrative 
Reviews and Requests for Revocation in Part, 75 FR 60076, 60081 
(September 29, 2010) (``Initiation Notice'').
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    \1\ Petitioners are the Laminated Woven Sacks Committee and its 
individual members, Coating Excellence International, LLC and 
Polytex Fibers Corporation.
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    On October 6, 2010, the Department issued its standard non-market 
economy (``NME'') questionnaire to Aifudi.\2\ Aifudi did not submit a 
response to the questionnaire. On November 3, 2010, Aifudi submitted a 
letter to the Department notifying the Department of its intent to 
withdraw and its refusal to further participate in this instant 
administrative review.\3\
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    \2\ The original deadlines for the NME questionnaire were 
October 27, 2010 for the Section A response and November 12, 2010 
for the Section C & D responses.
    \3\ See Letter from Aifudi entitled Laminated Woven Sacks from 
China; Withdrawal from Proceeding, dated November 3, 2010.
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Period of Review

    The period of review (``POR'') is August 1, 2009, through July 31, 
2010.

[[Page 81219]]

Scope of the Order

    The merchandise covered by the order is laminated woven sacks. 
Laminated woven sacks are bags or sacks consisting of one or more plies 
of fabric consisting of woven polypropylene strip and/or woven 
polyethylene strip, regardless of the width of the strip; with or 
without an extrusion coating of polypropylene and/or polyethylene on 
one or both sides of the fabric; laminated by any method either to an 
exterior ply of plastic film such as biaxially-oriented polypropylene 
(``BOPP'') or to an exterior ply of paper that is suitable for high 
quality print graphics; \4\ printed with three colors or more in 
register; with or without lining; whether or not closed on one end; 
whether or not in roll form (including sheets, lay-flat tubing, and 
sleeves); with or without handles; with or without special closing 
features; not exceeding one kilogram in weight. Laminated woven sacks 
are typically used for retail packaging of consumer goods such as pet 
foods and bird seed.
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    \4\ ``Paper suitable for high quality print graphics,'' as used 
herein, means paper having an ISO brightness of 82 or higher and a 
Sheffield Smoothness of 250 or less. Coated free sheet is an example 
of a paper suitable for high quality print graphics.
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    Effective July 1, 2007, laminated woven sacks are classifiable 
under Harmonized Tariff Schedule of the United States (``HTSUS'') 
subheadings 6305.33.0050 and 6305.33.0080. Laminated woven sacks were 
previously classifiable under HTSUS subheading 6305.33.0020. If entered 
with plastic coating on both sides of the fabric consisting of woven 
polypropylene strip and/or woven polyethylene strip, laminated woven 
sacks may be classifiable under HTSUS subheadings 3923.21.0080, 
3923.21.0095, and 3923.29.0000. If entered not closed on one end or in 
roll form (including sheets, lay-flat tubing, and sleeves), laminated 
woven sacks may be classifiable under other HTSUS subheadings including 
3917.39.0050, 3921.90.1100, 3921.90.1500, and 5903.90.2500. If the 
polypropylene strips and/or polyethylene strips making up the fabric 
measure more than 5 millimeters in width, laminated woven sacks may be 
classifiable under other HTSUS subheadings including 4601.99.0500, 
4601.99.9000, and 4602.90.0000. Although HTSUS subheadings are provided 
for convenience and customs purposes, the written description of the 
scope of the order is dispositive.

Non-Market Economy Country Status

    In every case conducted by the Department involving the PRC, the 
PRC has been treated as an NME country. Pursuant to section 
771(18)(C)(i) of the Act, any determination that a foreign country is 
an NME country shall remain in effect until revoked by the 
administering authority. See Freshwater Crawfish Tail Meat from the 
People's Republic of China: Notice of Final Results of Antidumping Duty 
Administrative Review, 71 FR 7013 (February 10, 2006). None of the 
parties to this proceeding have contested such treatment.

Separate Rates

    In proceedings involving NME countries, the Department begins with 
a rebuttable presumption that all companies within the country are 
subject to government control and thus should be assessed a single 
antidumping duty deposit rate (i.e., a PRC-wide rate).
    As Aifudi did not submit any information on the record regarding 
its status, we preliminarily determine that Aifudi has not demonstrated 
its eligibility for separate-rate status in this administrative review. 
Since Aifudi failed to provide information requested by the Department 
that is necessary to analyze whether it qualified for a separate rate, 
Aifudi has failed to rebut the presumption of PRC government control. 
Therefore, we have preliminarily determined that Aifudi does not 
qualify for a separate rate, but rather should be treated as part of 
the PRC-wide entity.

Use of Facts Available and Adverse Facts Available (``AFA'')

    Section 776(a) of the Act provides that the Department shall apply 
``facts otherwise available'' if: (1) Necessary information is not on 
the record, or (2) an interested party or any other person (A) 
withholds information that has been requested, (B) fails to provide 
information within the deadlines established, or in the form and manner 
requested by the Department, subject to subsections (c)(1) and (e) of 
section 782 of the Act, (C) significantly impedes a proceeding, or (D) 
provides information that cannot be verified as provided by section 
782(i) of the Act.
    Where the Department determines that a response to a request for 
information does not comply with the request, section 782(d) of the Act 
provides that the Department will so inform the party submitting the 
response and will, to the extent practicable, provide that party the 
opportunity to remedy or explain the deficiency. If the party fails to 
remedy the deficiency within the applicable time limits and subject to 
section 782(e) of the Act, the Department may disregard all or part of 
the original and subsequent responses, as appropriate.
    Section 782(e) of the Act provides that the Department ``shall not 
decline to consider information that is submitted by an interested 
party and is necessary to the determination but does not meet all 
applicable requirements established by the administering authority'' if 
the information is timely, can be verified, is not so incomplete that 
it cannot be used, and if the interested party acted to the best of its 
ability in providing the information. Where all of these conditions are 
met, the statute requires the Department to use the information 
supplied if it can do so without undue difficulties.
    Section 776(b) of the Act further provides that the Department may 
use an adverse inference in applying the facts otherwise available when 
a party has failed to cooperate by not acting to the best of its 
ability to comply with a request for information. Such an adverse 
inference may include reliance on information derived from the 
petition, the final determination, a previous administrative review, or 
other information placed on the record.

Application of Adverse Facts Available to the PRC-Wide Entity

    In the Initiation Notice, the Department stated that ``If the above 
named company does not qualify for a separate rate, all other exporters 
of laminated woven sacks from the PRC who have not qualified for a 
separate rate are deemed to be covered by this review as part of the 
single PRC entity of which the named exporters are a part.'' See 
Initiation Notice, 75 FR at 60081. As noted above, Aifudi, for which 
this review was initiated, has not qualified for a separate rate. As a 
result, the PRC-wide entity is now under review.\5\
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    \5\ See Wooden Bedroom Furniture From the People's Republic of 
China: Preliminary Results of Antidumping Duty Administrative Review 
and Intent To Rescind Review in Part, 75 FR 5952, 5959 (February 5, 
2010).
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    The company that we are treating as part of the PRC-wide entity, 
Aifudi, did not respond to the Department's antidumping duty 
questionnaire. Thus, we preliminarily determine that this company 
withheld information requested by the Department. Furthermore, this 
company's refusal to participate in the review significantly impeded 
the proceeding and prevented the Department from determining its 
dumping margin.

[[Page 81220]]

    Thus, pursuant to section 776(a)(2)(A) and (C) of the Act 
(withholds requested information and significantly impedes a 
proceeding), the Department has preliminarily based the dumping margin 
of the PRC-wide entity on the facts otherwise available on the record. 
Furthermore, the company's refusal to provide the requested information 
constitutes circumstances under which it is reasonable to conclude that 
less than full cooperation has been shown. See Nippon Steel Corporation 
v. United States, 337 F.3d 1373, 1383 (Fed. Cir. 2003) where the Court 
of Appeals for the Federal Circuit (``Federal Circuit'') provided an 
explanation of the ``failure to act to the best of its ability'' 
standard, noting that the Department need not show intentional conduct 
existed on the part of the respondent, but merely that a ``failure to 
cooperate to the best of a respondent's ability'' existed (i.e., 
information was not provided ``under circumstances in which it is 
reasonable to conclude that less than full cooperation has been 
shown''). Hence, pursuant to section 776(b) of the Act, the Department 
has determined that, when selecting from among the facts otherwise 
available, an adverse inference is warranted with respect to the PRC-
wide entity.

AFA Rate for the PRC-Wide Entity

    In deciding which facts to use as AFA, section 776(b) of the Act 
and 19 CFR 351.308(c)(1) provide that the Department may rely on 
information derived from (1) The petition, (2) a final determination in 
the investigation, (3) any previous review or determination, or (4) any 
information placed on the record. The Department's practice is to 
select an AFA rate that is sufficiently adverse ``as to effectuate the 
purpose of the facts available rule to induce respondents to provide 
the Department with complete and accurate information in a timely 
manner'' and that ensures ``that the party does not obtain a more 
favorable result by failing to cooperate than if it had cooperated 
fully.'' \6\ Specifically, the Department's practice in reviews, in 
selecting a rate as total AFA, is to use the highest rate on the record 
of the proceeding which, to the extent practicable, can be corroborated 
(if the rate is based on secondary information).\7\ The Court of 
International Trade and the Federal Circuit have affirmed decisions to 
select the highest margin from any prior segment of the proceeding as 
the AFA rate on numerous occasions.\8\ Therefore, as AFA, the 
Department has preliminarily assigned the PRC-wide entity a dumping 
margin of 91.73 percent. This margin, which is the PRC-wide rate from 
the final determination of the investigation of LWS from the PRC, is 
the highest dumping margin on the record of any segment of this 
proceeding.\9\
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    \6\ See Notice of Final Determination of Sales at Less than Fair 
Value: Static Random Access Memory Semiconductors From Taiwan, 63 FR 
8909, 8911 (February 23, 1998); see also Brake Rotors From the 
People's Republic of China: Final Results and Partial Rescission of 
the Seventh Administrative Review; Final Results of the Eleventh New 
Shipper Review, 70 FR 69937, 69939 (November 18, 2005) and the 
Statement of Administrative Action, accompanying the Uruguay Round 
Agreements Act, H.R. Rep. No. 103-316 (1994) (``SAA'') at 870.
    \7\ See Glycine from the People's Republic of China: Preliminary 
Results of Antidumping Duty Administrative Review, 74 FR 15930, 
15934 (April 8, 2009), unchanged in Glycine From the People's 
Republic of China: Final Results of Antidumping Duty Administrative 
Review, 74 FR 41121 (August 14, 2009); see also Fujian Lianfu 
Forestry Co., Ltd., a.k.a. Fujian Wonder Pacific Inc., et al. v. 
United States, 638 F. Supp. 2d 1325, 1336 (Ct. Int'l Trade 2009) 
(``Commerce may, of course, begin its total AFA selection process by 
defaulting to the highest rate in any segment of the proceeding, but 
that selection must then be corroborated, to the extent 
practicable.'').
    \8\ See e.g., NSK Ltd. v. United States, 346 F. Supp. 2d 1312, 
1335 (Ct. Int'l Trade 2004) (affirming a 73.55 percent total AFA 
rate, the highest available dumping margin from a different 
respondent in the investigation); Kompass Food Trading International 
v. United States, 24 CIT 678, 683-84 (2000) (affirming a 51.16 
percent total AFA rate, the highest available dumping margin from a 
different, fully cooperative respondent); and Shanghai Taoen 
International Trading Co., Ltd. v. United States, 360 F. Supp. 2d 
1339, 1348 (Ct. Int'l Trade 2005) (affirming a 223.01 percent total 
AFA rate, the highest available dumping margin from a different 
respondent in a previous administrative review).
    \9\ See Laminated Woven Sacks from the People's Republic of 
China: Final Determination of Sales at Less Than Fair Value and 
Partial Affirmative Determination of Critical Circumstances, 73 FR 
35646 (June 24, 2008) (``LTFV Final Determination'').
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Corroboration

    Section 776(c) of the Act provides that, when the Department relies 
on secondary information rather than on information obtained in the 
course of an investigation or review, it shall, to the extent 
practicable, corroborate that information from independent sources that 
are reasonably at its disposal. As described in the SAA, it is the 
Department's practice to use secondary information from the petition, 
the final determination, or any previous review under section 751 of 
the Act concerning the subject merchandise. See SAA at 870. The 
Department will satisfy itself that the secondary information has 
probative value and, to the extent practicable, will examine the 
reliability and relevance of the information to be used.
    The AFA rate being assigned to the PRC-wide entity (91.73 percent) 
is the highest rate assigned in any segment of this proceeding. See 
LTFV Final Determination, 73 FR at 35648. Furthermore, no information 
has been presented in the current review that calls into question the 
reliability of this information. We note that this is the highest rate 
from any segment of the proceeding and the rate is less than four years 
old. Thus, the Department finds that the information continues to be 
reliable.
    With respect to the relevance aspect of corroboration, the 
Department will consider information reasonably at its disposal to 
determine whether a margin continues to have relevance. Where 
circumstances indicate that the selected margin is not appropriate as 
AFA, the Department will disregard the margin and determine an 
appropriate margin. For example, in Fresh Cut Flowers From Mexico; 
Final Results of Antidumping Duty Administrative Review, 61 FR 6812, 
6814 (February 22, 1996), the Department disregarded the highest margin 
in that case as adverse best information available (the predecessor to 
``facts available'') because the margin was based on another company's 
uncharacteristic business expense resulting in an unusually high 
margin. Similarly, the Department does not apply a margin that has been 
judicially invalidated. See D&L Supply Co. v. United States, 113 F.3d 
1220, 1221 (Fed. Cir. 1997) (the Department will not use a margin that 
has been judicially invalidated).
    Pursuant to section 776(c) of the Act, the Department corroborated 
the petition rate of 91.73 percent in the investigation by comparing 
the petition margin to the individual CONNUM margins calculated for 
Aifudi in the investigation. See Memorandum to the File from Jamie 
Blair-Walker regarding Corroboration of the Petition Rate, dated 
December 6, 2010 (placing on the record of this administrative review 
the Memorandum to the File from Javier Barrientos, through Alex 
Villanueva, Program Manager, AD/CVD Operations, Office 9: Laminated 
Woven Sacks from the People's Republic of China: Analysis of Zibo 
Aifudi Plastic packaging Co., Ltd., for the Final Determination, dated 
June 16, 2008). We found that since the petition margin of 91.73 
percent was within the range of Aifudi's calculated CONNUM margins, the 
margin of 91.73 percent has probative value. As no company cooperated 
in this segment of the proceeding, we have no new calculated margins 
with which to further evaluate the 91.73 percent margin applied to the 
PRC-wide entity in the investigation. Accordingly, in light of the 
corroboration of this margin

[[Page 81221]]

in the investigation, we find that the rate of 91.73 percent is 
corroborated to the extent practicable within the meaning of section 
776(c) of the Act. Moreover, as there is no information on the record 
of this review that demonstrates that this rate is not appropriate for 
use as AFA, we determine that this rate has relevance.
    As the 91.73 percent rate is both reliable and relevant, we 
determine that it has probative value. Accordingly, we determine that 
the calculated rate of 91.73 percent, which is the current PRC-wide 
rate, is in accordance with the requirement of section 776(c) of the 
Act that secondary information be corroborated (i.e., that it have 
probative value). Consequently, we have assigned this AFA rate to 
exports of the subject merchandise from the PRC-wide entity.

Preliminary Results of Review

    We preliminarily determine that the following margin exists during 
the period August 1, 2009, through July 31, 2010:

                   Laminated Woven Sacks From the PRC
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                                                      Weighted-average
              Manufacturer/exporter                  margin  (percent)
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PRC-Wide Entity \10\.............................                 91.73
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Public Comment

    The Department will disclose to parties of this proceeding the 
information utilized in reaching the preliminary results within ten 
days of the date of announcement of the preliminary results. An 
interested party may request a hearing within 30 days of publication of 
the preliminary results. See 19 CFR 351.310(c). Interested parties may 
submit written comments (case briefs) within 30 days of publication of 
the preliminary results and rebuttal comments (rebuttal briefs), which 
must be limited to issues raised in the case briefs, within five days 
after the time limit for filing case briefs. See 19 CFR 
351.309(c)(1)(ii) and (d). Parties who submit arguments are requested 
to submit with the argument: (1) A statement of the issue; (2) a brief 
summary of the argument; and (3) a table of authorities. Further, the 
Department requests that parties submitting written comments provide 
the Department with a diskette containing the public version of those 
comments. Unless the deadline is extended pursuant to section 
751(a)(3)(A) of the Act, the Department will issue the final results of 
this administrative review, including the results of our analysis of 
the issues raised by the parties in their comments, within 120 days of 
publication of the preliminary results. The assessment of antidumping 
duties on entries of merchandise covered by this review and future 
deposits of estimated duties shall be based on the final results of 
this review.
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    \10\ Because the mandatory respondent, Zibo Aifudi Plastic 
Packaging Co., Ltd., did not qualify for a separate rate, we have 
treated this company as part of the PRC-wide entity.
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Assessment Rates

    Upon issuance of the final results, the Department will determine, 
and CBP shall assess, antidumping duties on all appropriate entries. 
The Department intends to issue assessment instructions to CBP 15 days 
after the date of publication of the final results of review. If these 
preliminary results are adopted in our final results of review, the 
Department shall determine, and CBP shall assess, antidumping duties on 
all appropriate entries. Pursuant to 19 CFR 351.212(b)(1), we will 
calculate importer-specific (or customer) ad valorem duty assessment 
rates based on the ratio of the total amount of the dumping margins 
calculated for the examined sales to the total entered value of those 
same sales. We will instruct CBP to assess antidumping duties on all 
appropriate entries covered by this review if any importer-specific 
assessment rate calculated in the final results of this review is above 
de minimis.

Cash Deposit Requirements

    The following cash deposit requirements, when imposed, will be 
effective upon publication of the final results of this administrative 
review for all shipments of the subject merchandise entered, or 
withdrawn from warehouse, for consumption on or after the publication 
date, as provided for by section 751(a)(2)(C) of the Act: (1) For 
previously investigated or reviewed PRC and non-PRC exporters not 
listed above that have separate rates, the cash deposit rate will 
continue to be the exporter-specific rate published for the most recent 
period; (2) for all PRC exporters of subject merchandise which have not 
been found to be entitled to a separate rate, the cash deposit rate 
will be the PRC-wide rate of 91.73 percent; and (3) the cash deposit 
rate for all non-PRC exporters of subject merchandise which have not 
received their own rate, the cash deposit rate will be the rate 
applicable to the PRC exporters that supplied that non-PRC exporter. 
These deposit requirements, when imposed, shall remain in effect until 
further notice.

Notification to Importers

    This notice serves as a preliminary reminder to importers of their 
responsibility under 19 CFR 351.402(f)(2) to file a certificate 
regarding the reimbursement of antidumping duties prior to liquidation 
of the relevant entries during this review period. Failure to comply 
with this requirement could result in the Secretary's presumption that 
reimbursement of antidumping duties occurred and the subsequent 
assessment of double antidumping duties.
    We are issuing and publishing this determination in accordance with 
sections 751(a)(1) and 777(i)(1) of the Act.

    Dated: December 20, 2010.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 2010-32475 Filed 12-23-10; 8:45 am]
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