Polyethylene Terephthalate Film, Sheet, and Strip From India: Preliminary Results of Antidumping Duty New Shipper Review, 81570-81574 [2010-32680]

Agencies

• DEPARTMENT OF COMMERCE
• International Trade Administration

[Federal Register Volume 75, Number 248 (Tuesday, December 28, 2010)]
[Notices]
[Pages 81570-81574]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-32680]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-533-824]


Polyethylene Terephthalate Film, Sheet, and Strip From India: 
Preliminary Results of Antidumping Duty New Shipper Review

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

SUMMARY: The Department of Commerce (the Department) is conducting a 
semiannual new shipper review (NSR) under the antidumping duty order on 
polyethylene terephthalate film, sheet, and strip (PET film) from India 
in response to a request from SRF Limited (SRF). The domestic 
interested parties for this proceeding are DuPont Teijin Films, 
Mitsubishi Polyester Film, Inc., SKC, Inc. and Toray Plastics 
(America), Inc. (petitioners).
    We preliminarily determine that the U.S. sale of subject 
merchandise produced and exported by SRF was bona fide and not sold 
below normal value (NV). If these preliminary results are adopted in 
our final results, the Department intends to instruct United States 
Customs and Border Protection (CBP) to liquidate entries subject to 
this review without regard to antidumping duties. Interested parties 
are invited to comment on these preliminary results. See the 
``Preliminary Results of Review'' section of this notice. The final 
results will be issued 90 days after the date of signature of these 
preliminary results, unless extended.

DATES: Effective Date: December 28, 2010.

FOR FURTHER INFORMATION CONTACT: Elfi Blum or Toni Page, AD/CVD 
Operations, Office 6, Import Administration, International Trade 
Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-
0197 or (202) 482-1398, respectively.

SUPPLEMENTARY INFORMATION:

Background

    The Department published the antidumping duty order on PET film 
from India on July 1, 2002. See Notice of Amended Final Antidumping 
Duty Determination of Sales at Less Than Fair Value and Antidumping 
Duty Order: Polyethylene Terephthalate Film, Sheet, and Strip from 
India, 67 FR 44175 (July 1, 2002). On December 24, 2009, the Department 
received a timely request from SRF, in accordance with section 
751(a)(2)(B) of the Tariff Act of 1930, as amended (the Act) and 19 CFR 
351.214(c)(2), to conduct a semiannual new shipper review under the 
antidumping duty order on PET film from India. The Department found the 
request for review met all of the requirements for initiation set forth 
in

[[Page 81571]]

19 CFR 351.214(b) and initiated the review on March 2, 2010. See 
Polyethylene Terephthalate Film, Sheet and Strip from India: Initiation 
of Antidumping Duty and Countervailing Duty New Shipper Reviews, 75 FR 
10758 (March 9, 2010) (NSR Initiation).\1\
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    \1\ As stated in the initiation notice, due to the closure of 
the Federal Government in Washington D.C. between February 5 and 
February 12, 2010, the Department tolled its deadlines during that 
period, thereby extending all deadlines in this segment of the 
proceeding by seven days. Therefore, the deadline for the initiation 
of this new shipper review was extended by one week, to March 8, 
2010. See NSR Initiation, 75 FR at 10758.
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    On April 6, 2010, the Department issued the initial questionnaire 
to SRF. On May 11, 2010, SRF submitted its section A response. On May 
13, 2010, SRF submitted its responses to sections B and C of the 
questionnaire. On June 16, August 17, and September 15, 2010, the 
Department issued supplemental questionnaires to SRF and to its U.S. 
customer. SRF and its U.S. customer (through SRF) submitted responses 
to the questionnaires on July 14, August 30, and November 19, 2010, 
respectively.
    On August 18, 2010, the Department extended the deadline for the 
preliminary results to October 22, 2010. See Polyethylene Terephthalate 
Film, Sheet and Strip from India: Extension of Time Limit for 
Preliminary Results of Antidumping Duty New Shipper Review, 75 FR 52717 
(August 27, 2010). On October 18, 2010, the Department decided to 
further extend the deadline for the preliminary results to December 16, 
2010, and then on December 16, 2010, the Department again extended the 
deadline to December 21, 2010. See Polyethylene Terephthalate Film, 
Sheet and Strip from India: Extension of Time Limit for Preliminary 
Results of Antidumping Duty New Shipper Review, 75 FR 65450 (October 
25, 2010); Polyethylene Terephthalate Film, Sheet and Strip from India: 
Extension of Time Limit for Preliminary Results of Antidumping Duty New 
Shipper Review, (signed on Thursday, December 16, 2010, and not yet 
published prior to the signing of the instant notice).

Scope of the Order

    The products covered by the antidumping duty order are all gauges 
of raw, pretreated, or primed PET film, whether extruded or coextruded. 
Excluded are metallized films and other finished films that have had at 
least one of their surfaces modified by the application of a 
performance-enhancing resinous or inorganic layer of more than 0.00001 
inches thick. Imports of PET film are currently classifiable in the 
Harmonized Tariff Schedule of the United States (HTSUS) under item 
number 3920.62.00.90. HTSUS subheadings are provided for convenience 
and customs purposes. The written description of the scope of the 
antidumping duty order is dispositive.

Bona Fides Analysis

    Consistent with Department practice, we examined the bona fides of 
the new shipper sale at issue. In evaluating whether a sale in a NSR is 
commercially reasonable, and therefore bona fide, the Department 
considers, inter alia, such factors as: (1) The timing of the sale; (2) 
the price and quantity; (3) the expenses arising from the transaction; 
(4) whether the goods were resold at a profit; and (5) whether the 
transaction was made on an arm's-length basis. See Tianjin Tiancheng 
Pharmaceutical Co., Ltd. v. United States, 366 F. Supp. 2d 1246, 1250 
(Ct. Int'l Trade 2005) (TTPC). Accordingly, the Department considers a 
number of factors in its bona fides analysis, ``all of which may speak 
to the commercial realities surrounding an alleged sale of subject 
merchandise.'' See Hebei New Donghua Amino Acid Co., Ltd. v. United 
States, 374 F. Supp. 2d 1333, 1342 (Ct. Int'l Trade 2005) (New Donghua) 
(citing Fresh Garlic From the People's Republic of China: Final Results 
of Antidumping Administrative Review and Rescission of New Shipper 
Review, 67 FR 11283 (March 13, 2002), and accompanying Issues and 
Decision Memorandum (New Shipper Review of Clipper Manufacturing 
Ltd.)). In TTPC, the court also affirmed the Department's decision that 
``any factor which indicates that the sale under consideration is not 
likely to be typical of those which the producer will make in the 
future is relevant,'' (TTPC, 366 F. Supp. 2d at 1250), and found that 
``the weight given to each factor investigated will depend on the 
circumstances surrounding the sale.'' TTPC, 366 F. Supp. 2d at 1263. 
Finally, in New Donghua, the Court of International Trade affirmed the 
Department's practice of evaluating the circumstances surrounding a NSR 
sale, so that a respondent does not unfairly benefit from an atypical 
sale and obtain a lower dumping margin than the producer's usual 
commercial practice would dictate.
    Based on the totality of circumstances, we preliminarily find that 
the sale made by SRF during the POR was a bona fide commercial 
transaction. The facts that led us to this preliminary conclusion 
include the following: (1) Neither the price nor quantity of the sale 
were outside normal bounds; (2) neither SRF nor its customer incurred 
any extraordinary expenses arising from this transaction; (3) the sale 
was made between unaffiliated parties at arm's length; and (4) the 
timing of the sale does not indicate that the sale was not bona fide. 
Since much of the factual information used in our analysis of the bona 
fides of the transaction involves business proprietary information, a 
full discussion of the bases for our decision is set forth in the 
Memorandum to Thomas Gilgunn, Program Manager, from Toni Page, 
International Trade Analyst, regarding Bona Fide Nature of the Sale in 
the Antidumping Duty New Shipper Review of Polyethylene Terephthalate 
Film, Sheet, and Strip from India: SRF Limited (Bona Fides Memorandum), 
dated concurrently with this notice and on file in the Central Records 
Unit (CRU), room 7046 of the main Department of Commerce building. We 
will continue to examine the bona fides of SRF's sale after the 
preliminary results.

Period of Review

    The period of review (POR) for this NSR is July 1, 2009, through 
December 31, 2009.

Fair Value Comparisons

    To determine whether SRF's sale of subject merchandise from India 
was made in the United States at less than NV, we compared the export 
price (EP) to the NV, as described in the ``U.S. Price'' and ``Normal 
Value'' section of this notice in accordance with section 777A(d)(2) of 
the Act.

Home Market Viability

    In order to determine whether there is a sufficient volume of sales 
in the home market to serve as a viable basis for calculating NV (i.e., 
the aggregate volume of home market sales of the foreign like product 
is five percent or more of the aggregate volume of U.S. sales), we 
compared the volume of SRF's home market sales of the foreign like 
product to the volume of its U.S. sales of subject merchandise, in 
accordance with section 773(a)(1)(B)(ii)(II) of the Act. Based on this 
comparison, we determined that SRF's home market was viable during the 
POR.

Product Comparisons

    Pursuant to section 771(16)(A) of the Act, for purposes of 
determining appropriate product comparisons to the U.S. sales, the 
Department considers all products, as described in the ``Scope of the 
Order'' section of this notice above, that were sold in the comparison 
market in the ordinary course of trade. In accordance with sections 
771(16)(B) and

[[Page 81572]]

(C) of the Act, where there are no sales of identical merchandise in 
the comparison market made in the ordinary course of trade, we compare 
U.S. sales to sales of the most similar foreign like product based on 
the characteristics listed in sections B and C of our antidumping 
questionnaire: Grade, specifications, thickness, dimensions, and 
surface treatment. We found that SRF had sales of foreign like product 
that were identical in these respects to the merchandise sold in the 
United States, and therefore compared the U.S. product with the 
identical merchandise sold in the comparison market based on the 
characteristics listed above, in that order of priority.

Date of Sale

    Regarding date of sale, 19 CFR 351.401(i) states that the 
Department will normally use the date of invoice as the date of sale, 
unless a different date better reflects the date on which the material 
terms of sale are established. In its initial response, SRF reported 
invoice date as the date of sale for its home market sales and for its 
U.S. sale. Moreover, SRF reported that for both markets, it issues the 
invoice on the same date as it ships the merchandise. In its second 
supplemental questionnaire response, SRF stated that sometimes 
negotiations can continue after the invoice has been issued (and the 
goods have been shipped) for certain home market sales. See SRF's 
November 19, 2010, second supplemental questionnaire response at 9. In 
these circumstances, SRF does not issue a new invoice, rather it 
adjusts the invoice price by issuing a credit note. See Id. We have 
analyzed the data on the record and preliminarily determine that the 
reported invoice dates are the appropriate dates of sale for the U.S. 
and home market sales under review.

U.S. Price

    We used EP methodology for SRF's U.S. sale, in accordance with 
section 772(a) of the Act, because the subject merchandise was sold 
directly to the first unaffiliated purchaser in the United States prior 
to importation, and constructed export price methodology was not 
otherwise warranted based on the facts of record. In accordance with 
sections 772(a) and (c) of the Act, we calculated EP using the 
delivered duty paid price SRF charged its unaffiliated customer. We 
made deductions, where applicable, for movement expenses, including, 
domestic inland freight, U.S. inland freight, domestic brokerage and 
handling, U.S. brokerage and handling, international freight, marine 
insurance, and U.S. Customs duties.
    Information about the specific adjustments and our analysis of the 
adjustments is business proprietary, and is detailed in the 
``Adjustments'' section in the Memorandum to Thomas Gilgunn, Program 
Manager, from Toni Page, International Trade Analyst, Analysis 
Memorandum for the Preliminary Results of the Antidumping Duty New 
Shipper Review of Polyethylene Terephthalate Film, Sheet, and Strip 
from India: SRF Limited, dated concurrently with this notice 
(Preliminary Analysis Memorandum).

Normal Value

    In accordance with section 773(a)(1)(B)(i) of the Act, we have 
based NV on the price at which the foreign like product was first sold 
for consumption in the comparison market, in the usual commercial 
quantities, in the ordinary course of trade, and, to the extent 
practicable, at the same level of trade (LOT) as the EP sale. See 
``Level of Trade'' section below.

Level of Trade

    Pursuant to section 773(a)(1)(B)(i) of the Act, to the extent 
practicable, NV is normally the price in the home market that is at the 
same level of trade (LOT) as the EP. The NV LOT is that of the 
starting-price sale in the comparison market, or when NV is based on 
CV, that of the sales from which we derive selling, general and 
administrative (SG&A) expenses and profit. For EP, the U.S. LOT is the 
level of the starting-price sale, which is usually from exporter to 
unaffiliated customer. To determine whether NV sales are at a different 
LOT than EP sales, we examine stages in the selling functions along the 
chain of distribution between the producer and unaffiliated customer. 
If the comparison market sales are at a different LOT, and the 
difference affects the price comparability, as manifested in a pattern 
of consistent price differences between sales at different levels of 
trade in the country in which NV is determined, we make an LOT 
adjustment under section 773(a)(7)(A) of the Act and under section 
351.410(c) of the Department's regulations. See, e.g., Notice of Final 
Determination of Sales at Less Than Fair Value: Certain Cut-to-Length 
Carbon Steel Plate from South Africa, 62 FR 61731 (November 19, 1997).
    For the U.S. market, SRF reported only one channel of distribution 
(from SRF to unaffiliated U.S. trader) for its EP sale while, in the 
home market, SRF reported four channels (the four channels are: SRF to 
end user, SRF to dealer, SRF to dealer attached customer, and SRF to 
warehouse to dealer/dealer-attached customer). See section A 
questionnaire response at Exhibit A-5. SRF provided information about 
selling functions it performed in its home market for all three of its 
customer categories (end users, dealers, and dealer-attached customers) 
across the four channels of distribution. SRF reported that certain 
selling functions were not performed for all three home market customer 
categories. For its home market sales, SRF reported that its channel of 
distribution to dealers and dealer-attached customers were most similar 
to the channel of distribution to its U.S. sale. See section C 
questionnaire response at C-11 and SRF's Second Supplemental 
Questionnaire Response at 9.
    After analyzing the information on the record with respect to these 
selling functions, we preliminarily find that there were sufficient 
differences in the selling functions performed for the different 
channels of trade to conclude that there is more than one level of 
trade in the home market. We examined the information reported by SRF 
with respect to its selling functions, freight functions, technical 
services/warranty functions, and inventory management functions. We 
examined the selling functions and the level of intensity at which SRF 
performs those selling functions in the home market channels of 
distribution, as described in the company's questionnaire responses. 
See section A questionnaire response at A-20 and Exhibit A-5; see also 
SRF's November 19, 2010, second supplemental questionnaire response at 
8-9. Information about the specific selling functions we examined, the 
intensity at which SRF performed them, and our analysis is business 
proprietary and is detailed in the ``Level of Trade'' section in the 
Preliminary Analysis Memorandum. Based on the facts and our analysis of 
SRF's selling functions performed in the channels of distribution, we 
preliminarily conclude that SRF's home market sales were made at two 
distinct levels of trade: Sales directly from SRF to its end user and 
sales from SRF to its dealers and dealer-attached customers. See 
``Level of Trade'' section in the Preliminary Analysis Memorandum.
    As noted previously, SRF reported that its U.S. sale was made 
through one distribution channel, to an unaffiliated trader in the 
United States. For the U.S. market, we also examined the information 
reported by SRF with respect to the selling functions, the freight 
functions, and U.S. Customs functions performed by SRF for its sale to 
the unaffiliated U.S. customer. We examined the selling functions and 
the

[[Page 81573]]

level of intensity at which SRF performs these selling functions as 
described in its questionnaire responses. See section A questionnaire 
response at A-19 through A-20 and at Exhibit A-5, section C 
questionnaire response at Exhibit C-1, and SRF's November 19, 2010, 
second supplemental questionnaire response at 8-9. Information about 
the specific selling functions we examined, the intensity at which SRF 
performed those selling functions for its U.S. sale (to the 
unaffiliated trader) and our analyses is business proprietary. As such, 
it is detailed in the ``Level of Trade'' section in the Preliminary 
Analysis Memorandum.
    Based on our analysis, we preliminarily find that the U.S. sale is 
at the same LOT as SRF's home market sales to dealers and dealer-
attached customers (LOTH 2). Since we are able to match the U.S. sale 
to home market sales at a comparable LOT, the Department finds that it 
is not necessary to make an LOT adjustment. For our complete analysis, 
see ``Level of Trade'' section in the Preliminary Analysis Memorandum.

Calculation of Normal Value

    We based NV on the starting prices of SRF's sales to unaffiliated 
home market customers accounting for billing adjustments where 
applicable, pursuant to section 773(a)(1)(A) of the Act. Pursuant to 
section 773(a)(6)(B)(ii) of the Act, we made deductions from normal 
value for movement expenses (i.e., inland freight, warehousing, and 
inland insurance) where appropriate. In accordance with section 
773(a)(6)(C)(iii) of the Act and 19 CFR 351.410(e), we made, where 
appropriate, circumstance-of-sale adjustments for home market and U.S. 
direct selling expenses including imputed credit expenses. We also made 
adjustments in accordance with 19 CFR 351.410(e) for indirect selling 
expenses incurred on comparison-market or U.S. sales where commissions 
were granted on sales in one market but not the other. Specifically, 
because commissions were paid only in the home market, we made an 
upward adjustment to NV for the lesser of: (1) the amount of commission 
paid in the home market; or (2) the amount of the indirect selling 
expenses incurred in the home market on U.S. sales. See 19 CFR 
351.410(e). In accordance with sections 773(a)(6)(A) and (B) of the 
Act, we also deducted home market packing costs and added U.S. packing 
costs. See Preliminary Analysis Memorandum.

Currency Conversion

    In accordance with section 773A(a) of the Act, we made currency 
conversions based on the official exchange rates in effect on the dates 
of the U.S. sales as certified by the Federal Reserve Bank of New York. 
See also 19 CFR 351.415.

Preliminary Results of New Shipper Review

    As a result of our review, we preliminarily determine in accordance 
with 19 CFR 351.214(i)(1) that the following percentage margin exists 
for SRF for the period July 1, 2009, through December 31, 2009:

------------------------------------------------------------------------
                    Manufacturer/exporter                        Margin
------------------------------------------------------------------------
SRF Limited..................................................         0%
------------------------------------------------------------------------

Assessment Rate

    Upon completion of the new shipper review, the Department shall 
determine, and CBP shall assess, antidumping duties on all appropriate 
entries, in accordance with 19 CFR 351.212(b). The Department intends 
to issue assessment instructions for SRF directly to CBP 15 days after 
the date of publication of the final results of this new shipper 
review.
    Pursuant to 19 CFR 351.212(b)(1), we will calculate an importer-
specific assessment rate on the basis of the ratio of the total amount 
of antidumping duties calculated for the examined sales and the total 
entered value of the examined sales. We will instruct CBP to assess 
antidumping duties on all appropriate entries covered by this review if 
the importer-specific assessment rate calculated in the final results 
of this review is above de minimis (i.e., at or above 0.50 percent). 
Pursuant to 19 CFR 351.106(c)(2), we intend to instruct CBP to 
liquidate without regard to antidumping duties any entries for which 
the assessment rate is zero or de minimis (i.e., less than 0.50 
percent). See 19 CFR 351.106(c)(1).

Cash Deposit Requirements

    The following cash deposit requirements will be effective for all 
shipments of the subject merchandise entered, or withdrawn from 
warehouse, for consumption on or after the publication date of the 
final results of this new shipper review, as provided by section 
751(a)(2)(C) of the Act: (1) The cash deposit rate for subject 
merchandise that is both produced and exported by SRF will be the rate 
established in the final results of this new shipper review, except no 
cash deposit will be required if its weighted-average margin is de 
minimis (i.e., less than 0.5 percent); (2) if the exporter is not a 
firm covered in this review, but was covered in a previous review or 
the original less-than-fair-value (LTFV) investigation, 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 previous review, or the original LTFV investigation, 
but the manufacturer is, the cash deposit rate will be the rate 
established for the most recent period for the manufacturer of the 
merchandise; and (4) the cash deposit rate for all other manufacturers 
and/or exporters of this merchandise, shall be 5.71 percent, the all-
others rate established in the LTFV investigation. These requirements, 
when imposed, shall remain in effect until further notice.
    Further, effective upon publication of the final results, we intend 
to instruct CBP that importers may no longer post a bond or other 
security in lieu of a cash deposit on imports of PET film from India, 
manufactured and exported by SRF. These cash deposit requirements, when 
imposed, shall remain in effect until further notice.

Verification

    In accordance with section 782(i)(3) of the Act, the Department 
intends to conduct a sales verification of SRF's responses following 
the preliminary results of this review.

Disclosure and Public Hearing

    The Department will disclose to parties the calculations performed 
in connection with these preliminary results within ten days of the 
date of public announcement. See 19 CFR 351.224(b). Unless notified by 
the Department, pursuant to 19 CFR 351.309(c), interested parties may 
submit cases briefs not later than 30 days after the date of 
publication of this notice. Rebuttal briefs, limited to issues raised 
in the case briefs, may be filed not later than five days after the 
deadline for filing the case briefs. See 19 CFR 351.309(d). Parties who 
submit case briefs or rebuttal briefs in this proceeding are requested 
to submit with each argument: (1) A statement of the issue; (2) a brief 
summary of the argument; and (3) a table of authorities. Additionally, 
parties are requested to provide their case briefs and rebuttal briefs 
in electronic format (e.g., WordPerfect, Microsoft Word, Adobe Acrobat, 
etc.).
    Interested parties who wish to request a hearing or to participate 
if one is requested must submit a written request to the Assistant 
Secretary for Import Administration, Room B-099, within 30 days of the 
date of publication of this

[[Page 81574]]

notice. Requests should contain: (1) The party's name, address and 
telephone number; (2) the number of participants; and (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 and rebuttal 
briefs.
    The Department will issue the final results of this review, 
including the results of its analysis of issues raised in any written 
briefs, within 90 days of signature of these preliminary results, 
unless the final results are extended. See section 751(a)(2)(B)(iv) of 
the Act.

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.
    This new shipper review is issued and published in accordance with 
sections 751(a)(2)(B)(iv) and 777(i)(1) of the Act, as well as 19 CFR 
351.214(i).

    Dated: December 21, 2010.
Christian Marsh,
Acting Deputy Assistant Secretary for Import Administration.
[FR Doc. 2010-32680 Filed 12-27-10; 8:45 am]
BILLING CODE 3510-DS-P