Polyethylene Terephthalate Film, Sheet, and Strip From Brazil: Preliminary Results of Antidumping Duty Administrative Review, 48122-48125 [2011-20072]
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Federal Register / Vol. 76, No. 152 / Monday, August 8, 2011 / Notices
DEPARTMENT OF COMMERCE
International Trade Administration
[A–475–818]
Certain Pasta From Italy: Notice of
Court Decision Not in Harmony With
Final Results of Administrative Review
and Notice of Amended Final Results
of Administrative Review Pursuant to
Court Decision
Import Administration,
International Trade Administration,
Department of Commerce.
SUMMARY: On July 22, 2011, the United
States Court of International Trade
(‘‘CIT’’) sustained the Department of
Commerce’s (‘‘the Department’s’’)
results of redetermination as applied to
Atar, S.r.L. (‘‘Atar’’) pursuant to the
CIT’s order granting the Department’s
voluntary remand request in Atar, S.r.L.
v. United States, 08–00004, (November
10, 2009) (‘‘Remand Order’’). See Final
Remand Determination, Court No. 08–
00004, filed May 6, 2010 (‘‘Remand
Results’’), and Atar, S.r.L. v. United
States, Court No. 08–00004, Slip Op.
11–87 (July 22, 2011). The Department
is notifying the public that the final CIT
judgment in this case is not in harmony
with the Department’s final
determination and is amending the final
results of the administrative review of
the antidumping duty order on certain
pasta from Italy covering the period of
review (‘‘POR’’) of July 1, 2005, through
June 30, 2006, with respect to Atar.
DATES: Effective Date: August 1, 2011.
FOR FURTHER INFORMATION CONTACT:
Christopher Hargett, AD/CVD
Operations, Office 3, Import
Administration, International Trade
Administration, U.S. Department of
Commerce, 14th Street and Constitution
Avenue, NW., Washington, DC 20230;
telephone; (202) 482–4161.
SUPPLEMENTARY INFORMATION:
AGENCY:
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Background
On December 11, 2007, the
Department published its final results of
the administrative review for pasta from
Italy for the period from July 1, 2005,
through June 30, 2006. See Certain
Pasta from Italy: Notice of Final Results
of the Tenth Administrative Review and
Partial Rescission of Review, 72 FR
70298 (December 11, 2007) (‘‘Final
Results’’).
Atar appealed the Final Results to the
CIT arguing, among other things, that
the Department should not have
rescinded the review with respect to
Atar. On October 23, 2009, the
Department requested a voluntary
remand ‘‘to allow the Department to
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reconsider its rescission of the
administrative review with respect to
Atar.’’ See Memorandum in Response to
Plaintiff’s Motion for Judgment upon the
Agency Record at 4. On November 10,
2009, the CIT granted the Department’s
request for a remand to reconsider its
rescission of the administrative review
with respect to Atar. See Remand Order.
On May 6, 2010, the Department
issued its final results of remand
redetermination in which it determined
to issue final results of review with
respect to Atar rather than rescind the
review. See Remand Results. On July 22,
2011, the CIT affirmed the Department’s
Remand Results. See Atar, S.r.L. v.
United States, Court No. 08–00004, Slip
Op. 11–87 (July 22, 2011). Timken
Notice
Consistent with the decision of the
United States Court of Appeals for the
Federal Circuit (‘‘CAFC’’) in Timken Co.
v. United States, 893 F.2d 337 (CAFC
1990) (‘‘Timken’’), as clarified by
Diamond Sawblades Mfrs. Coalition v.
United States, 626 F.3d 1374 (CAFC
2010), pursuant to section 516A(c) of
the Tariff Act of 1930, as amended (‘‘the
Act’’), the Department must publish a
notice of a court decision that is not ‘‘in
harmony’’ with a Department
determination and must suspend
liquidation of entries pending a
‘‘conclusive’’ court decision. The CIT’s
judgment on July 22, 2011, sustaining
the Department’s Remand Results with
respect to Atar constitutes a decision of
that court that is not in harmony with
the Department’s Final Results. This
notice is published in fulfillment of the
publication requirements of Timken.
Accordingly, the Department will
continue the suspension of liquidation
of the subject merchandise pending the
expiration of the period of appeal or, if
appealed, pending a final and
conclusive court decision.
Amended Final Results
Because there is now a final court
decision with respect to Atar, we
determine that Atar was not the
producer of pasta which it sold to the
United States and that the actual pasta
producers knew the goods were
destined for the United States.
Therefore, the appropriate assessment
rate for entries during the period July 1,
2005, through June 30, 2006, is the rate
applicable to each producer (i.e., either
the relevant producer-specific rate or all
others rate).
In the event the CIT’s ruling is not
appealed or, if appealed, upheld by the
CAFC, the Department will instruct U.S.
Customs and Border Protection to assess
antidumping duties on entries of the
subject merchandise exported during
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the POR by Atar using the revised
assessment rates calculated by the
Department in the Remand Results.
This notice is issued and published in
accordance with sections 516A(e)(1),
751(a)(1), and 777(i)(1) of the Act.
Dated: August 2, 2011.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import
Administration.
[FR Doc. 2011–20052 Filed 8–5–11; 8:45 am]
BILLING CODE 3510–DS–P
DEPARTMENT OF COMMERCE
International Trade Administration
[A–351–841]
Polyethylene Terephthalate Film,
Sheet, and Strip From Brazil:
Preliminary Results of Antidumping
Duty Administrative Review
Import Administration,
International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce
(the Department) is conducting an
administrative review of the
antidumping duty order on
polyethylene terephthalate film, sheet,
and strip (PET film) from Brazil. This
administrative review covers one
respondent, Terphane, Inc. (Terphane)
and the period of review (POR) is
November 1, 2009 through October 31,
2010. Since Terphane did not respond
to the Department’s requests for
information, we have assigned Terphane
a margin based on adverse facts
available (AFA). If these preliminary
results are adopted in our final results
of this review, we will instruct U.S.
Customs and Border Protection (CBP) to
assess antidumping duties on all
appropriate entries of subject
merchandise made during the POR.
Interested parties are invited to
comment on these preliminary results.
We intend to issue the final results no
later than 120 days from the date of
publication of this notice, pursuant to
section 751(a)(3)(A) of the Tariff Act of
1930, as amended (the Act).
DATES: Effective Date: August 8, 2011.
FOR FURTHER INFORMATION CONTACT:
Deborah Scott or Robert James, AD/CVD
Operations, Office 7, Import
Administration, International Trade
Administration, U.S. Department of
Commerce, 14th Street and Constitution
Avenue, NW., Washington, DC 20230;
telephone: (202) 482–2657 or (202) 482–
0649, respectively.
SUPPLEMENTARY INFORMATION:
AGENCY:
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Background
On November 10, 2008, the
Department published the antidumping
duty order on PET film from Brazil. See
Polyethylene Terephthalate Film, Sheet,
and Strip From Brazil, the People’s
Republic of China and the United Arab
Emirates: Antidumping Duty Orders and
Amended Final Determination of Sales
at Less Than Fair Value for the United
Arab Emirates, 73 FR 66595 (November
10, 2008). On November 1, 2010, the
Department published Antidumping or
Countervailing Duty Order, Finding, or
Suspended Investigation; Opportunity
To Request Administrative Review, 75
FR 67079 (November 1, 2010). On
November 30, 2010, DuPont Teijin
Films, Mitsubishi Polyester Film, Inc.,
SKC, Inc., and Toray Plastics (America),
Inc. (collectively, petitioners) requested
that the Department conduct an
administrative review of Terphane’s
sales of PET film from Brazil made
during the period November 1, 2009,
through October 31, 2010. On December
28, 2010, the Department published a
notice of initiation for an administrative
review of PET film from Brazil for
Terphane for the period November 1,
2009, through October 31, 2010. See
Initiation of Antidumping and
Countervailing Duty Administrative
Reviews and Request for Revocation in
Part, 75 FR 81565 (December 28, 2010).
On February 9, 2011, the Department
issued an antidumping duty
questionnaire to Terphane. On March
14, 2011, Terphane submitted a letter to
the Department stating that during the
POR, it did not ship any subject
merchandise to the United States and all
of its shipments to the United States
consisted of merchandise outside the
scope of the order on PET film from
Brazil. Terphane also indicated it did
not have any sales or offers for sale of
subject merchandise to the United
States during the POR. Terphane thus
informed the Department it did not
intend to respond to the Department’s
questionnaire or otherwise participate
in the administrative review.
On May 11, 2011, the Department
placed on the record of this proceeding
data from CBP regarding imports of PET
film during the POR and entry
documentation for a certain entry. On
May 27, 2011, the Department issued a
letter to Terphane, stating that
information in the CBP data suggested
subject merchandise had entered the
United States during the POR. The
Department therefore requested that
Terphane review the information in the
Department’s May 11, 2011,
memorandum to the file and provide
clarification as to its claim of no
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shipments; further, the Department
asked that Terphane respond to the
February 9, 2011, questionnaire if
indeed it had sales, entries or shipments
of subject merchandise during the POR.
On June 10, 2011, Terphane
submitted a letter stating it did not
review the May 11, 2011, memorandum,
but it did examine its own transactions
during the POR and had identified one
‘‘de minimis’’ entry of subject
merchandise. Terphane declared this
entry had been accidentally shipped to
the United States prior to the POR, and
not pursuant to any sale or offer for sale,
and that it paid cash deposits on this
merchandise when it entered the United
States during the POR. As a result,
Terphane confirmed it would not be
responding to the Department’s
questionnaire or otherwise participating
in this administrative review.
Period of Review
The POR is November 1, 2009,
through October 31, 2010.
Scope of the Order
The products covered by this order
are all gauges of raw, pre-treated, or
primed PET film, whether extruded or
co-extruded. Excluded are metallized
films and other finished films that have
had at least one of their surfaces
modified by the application of a
performance-enhancing resinous or
inorganic layer more than 0.00001
inches thick. Also excluded is roller
transport cleaning film which has at
least one of its surfaces modified by
application of 0.5 micrometers of SBR
latex. Tracing and drafting film is also
excluded. PET film is classifiable under
subheading 3920.62.00.90 of the
Harmonized Tariff Schedule of the
United States (HTSUS). While HTSUS
subheadings are provided for
convenience and customs purposes, our
written description of the scope of these
orders is dispositive.
Application of Facts Available
Section 776(a) of the Act provides that
the Department shall, subject to section
782(d) of the Act, apply ‘‘the facts
otherwise available’’ if (1) necessary
information is not available on the
record of an antidumping proceeding or
(2) an interested party or any other
person: (A) withholds information that
has been requested by the administering
authority; (B) fails to provide such
information by the deadlines for the
submission of the information or in the
form and manner requested, subject to
subsections (c)(1) and (e) of section 782
of the Act; (C) significantly impedes a
proceeding under this title; or (D)
provides such information but the
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48123
information cannot be verified as
provided in 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 with an
opportunity to remedy or explain the
deficiency. Section 782(d) of the Act
further provides that if the party
submits further information that is
unsatisfactory or untimely, the
Department may, subject to subsection
(e), disregard all or part of the original
and subsequent responses. 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 the applicable requirements
established by the administering
authority’’ if the information is
submitted in a timely manner, can be
verified, is not so incomplete that it
cannot be used, and 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.
In this case, Terphane did not provide
a response to our request for
information and information necessary
to make a determination in this segment
of the proceeding is not on the record.
In fact, Terphane specifically stated in
its letter of March 14, 2011, and
confirmed in its letter of June 10, 2011,
that it would not be responding to the
Department’s questionnaire or otherwise
participating in this administrative
review. Thus, the Department
preliminarily determines that necessary
information is not available on the
record to serve as the basis for the
calculation of Terphane’s margin. See
section 776(a)(1) of the Act. We also
preliminarily find that Terphane has
withheld information requested by the
Department and significantly impeded
the proceeding. See section 776(a)(2)(A)
and (C) of the Act; see also e.g., Certain
Lined Paper Products from India: Notice
of Final Results of the First
Antidumping Duty Administrative
Review, 74 FR 17149 (April 14, 2009),
and accompanying Issues and Decision
Memorandum at Comment 2.
Therefore, pursuant to sections
776(a)(1) and 776(a)(2)(A) and (C) of the
Act, the Department preliminarily
determines that the use of the facts
otherwise available is warranted for
Terphane. Because Terphane did not
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respond to the Department’s request for
information, sections 782(d) and (e) of
the Act are not applicable in this case.
Application of Adverse Facts Available
and Selection of Adverse Facts
Available Rate
Section 776(b) of the Act provides
that, if the Department finds an
interested party has failed to cooperate
by not acting to the best of its ability to
comply with requests for information,
the Department may use an inference
that is adverse to the interests of that
party in selecting from the facts
otherwise available. See, e.g., Notice of
Final Results of Antidumping Duty
Administrative Review, and Final
Determination to Revoke the Order In
Part: Individually Quick Frozen Red
Raspberries from Chile, 72 FR 70295,
70297 (December 11, 2007). Adverse
inferences are appropriate ‘‘to ensure
that the party does not obtain a more
favorable result by failing to cooperate
than if it had cooperated fully.’’ See
Statement of Administrative Action
accompanying the Uruguay Round
Agreements Act, H.R. Doc. No. 103–316,
Vol. 1 (1994) (SAA) at 870. Furthermore,
‘‘affirmative evidence of bad faith on the
part of a respondent is not required
before the Department may make an
adverse inference.’’ See Antidumping
Duties; Countervailing Duties; Final
Rule, 62 FR 27296, 27340 (May 19,
1997); see also Nippon Steel Corp. v.
United States, 337 F.3d 1373, 1382–83
(Fed. Cir. 2003). In this case, the
Department finds Terphane failed to
cooperate to the best of its ability in this
proceeding by refusing to respond to the
Department’s antidumping
questionnaire and otherwise participate
in the Department’s administrative
review. Therefore, since Terphane did
not act to the best of its ability by
complying with the Department’s
request for information, the Department
has preliminarily determined an adverse
inference is warranted in selecting from
the facts otherwise available pursuant to
section 776(b) of the Act. See, e.g.,
Notice of Final Determination of Sales
at Less Than Fair Value: Circular
Seamless Stainless Steel Hollow
Products From Japan, 65 FR 42985,
42986 (July 12, 2000) (the Department
applied total AFA where a respondent
failed to respond to subsequent
antidumping questionnaires).
Section 776(b) of the Act provides the
Department may use, as an adverse
inference, information derived from the
petition, the final determination in the
investigation, any previous
administrative review, or other
information placed on the record. The
Department’s practice, when selecting
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an AFA rate from among the possible
sources of information, has been to
ensure that the margin is sufficiently
adverse ‘‘as to effectuate the statutory
purposes of the adverse facts available
rule to induce respondents to provide
the Department with complete and
accurate information in a timely
manner.’’ See, e.g., Certain Steel
Concrete Reinforcing Bars from Turkey;
Final Results and Rescission of
Antidumping Duty Administrative
Review in Part, 71 FR 65082, 65084
(November 7, 2006).
The Department preliminarily
determines to assign Terphane an AFA
rate of 44.36 percent. This rate is
Terphane’s cash deposit rate from the
investigation and represents the highest
margin alleged in the petition. See
Notice of Final Determination of Sales
at Less Than Fair Value: Polyethylene
Terephthalate Film, Sheet, and Strip
from Brazil, 73 FR 55035, 55036
(September 24, 2008) (Final
Determination). This rate is also
Terphane’s margin from the
immediately preceding administrative
review that was based on AFA. See
Polyethylene Terephthalate Film, Sheet,
and Strip From Brazil: Final Results of
Antidumping Duty Administrative
Review, 75 FR 75172 (December 2,
2010).
Corroboration of Secondary
Information Used as Adverse Facts
Available
Section 776(c) of the Act provides
that, where the Department selects from
among the facts otherwise available and
relies on ‘‘secondary information,’’ the
Department shall, to the extent
practicable, corroborate that information
from independent sources reasonably at
the Department’s disposal. Information
from a prior segment of the proceeding
constitutes secondary information. See
SAA at 870; see also e.g., Antifriction
Bearings and Parts Thereof From
France, Germany, Italy, Japan,
Singapore, and the United Kingdom:
Final Results of Antidumping Duty
Administrative Reviews, Rescission of
Administrative Reviews in Part, and
Determination To Revoke Order in Part,
69 FR 55574, 55577 (September 15,
2004). The word ‘‘corroborate’’ means
the Department will satisfy itself that
the secondary information to be used
has probative value. See SAA at 870; see
also Certain Frozen Warmwater Shrimp
from Brazil: Final Results and Partial
Rescission of Antidumping Duty
Administrative Review, 73 FR 39940
(July 11, 2008), and accompanying
Issues and Decision Memorandum at
Comment 1.
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To corroborate secondary information,
the Department will, to the extent
practicable, examine the reliability and
relevance of the information to be used.
Id. Unlike other types of information
such as input costs or selling expenses,
there are no independent sources for
calculated dumping margins. The only
sources for calculated margins are
administrative determinations.
In an administrative review, if the
Department chooses to use as facts
available a petition rate which was
corroborated in the less-than-fair-value
(LTFV) investigation and no information
has been presented in the current
review that calls into the question of
reliability of this information, the
information is reliable. See, e.g., Certain
Tissue Paper from the People’s Republic
of China: Preliminary Results and
Preliminary Rescission, In Part, of
Antidumping Duty Administrative
Review, 72 FR 17477, 17480–81 (April
9, 2007), unchanged in Certain Tissue
Paper Products from the People’s
Republic of China: Final Results and
Final Rescission, In Part, of
Antidumping Duty Administrative
Review, 72 FR 58642 (October 16, 2007).
Because the AFA rate of 44.36 percent
in this review was corroborated in the
LTFV investigation and the immediately
preceding administrative review of
Terphane, and no information in the
current review calls into question the
reliability of this rate, we find the AFA
rate of 44.36 percent is reliable. See
Notice of Preliminary Determination of
Sales at Less Than Fair Value:
Polyethylene Terephthalate Film, Sheet,
and Strip from Brazil, 73 FR 24560 (May
5, 2008), unchanged in Final
Determination.
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 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 discredited
or judicially invalidated. See D & L
Supply Co. v. United States, 113 F.3d
1220, 1221 (Fed. Cir. 1997).
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In this review, there are no
circumstances present to indicate that
the selected margin is not appropriate as
AFA. The margin we have selected is
the margin we determined for Terphane
in the LTFV investigation and
represents the highest margin alleged in
the petition. This is also the margin we
assigned to Terphane in the
immediately preceding administrative
review. Moreover, because Terphane
refused to respond to the Department’s
questionnaire, there is no information
on the record of this review that
demonstrates that 44.36 percent is not
an appropriate AFA rate for Terphane.
Thus, the Department considers this
dumping margin relevant for the use of
AFA for this administrative review.
As the AFA rate is both reliable and
relevant, we find it has probative value.
Therefore, with the information at our
disposal for the corroboration of this
AFA rate, we find the rate of 44.36
percent is corroborated to the extent
practicable in accordance with section
776(c) of the Act. We preliminarily find
that use of the rate of 44.36 percent as
AFA is sufficiently high to ensure that
Terphane does not benefit from failing
to cooperate in our review by choosing
not to respond to the Department’s
antidumping questionnaire and
otherwise participate in the
Department’s administrative review.
Preliminary Results of Review
We preliminarily determine that the
following antidumping duty margin
exists for the period November 1, 2009,
through October 31, 2010:
Producer/Exporter
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Terphane, Inc. ......................
Margin
(percent)
44.36
Disclosure and Public Comment
Interested parties may submit case
briefs no later than 30 days after the
date of publication of these preliminary
results of review. See 19 CFR
351.309(c)(1)(ii). Rebuttal briefs, limited
to issues raised in the case briefs, may
be filed no later than five days after the
time limit for filing the case briefs. See
19 CFR 351.309(d)(1). Parties who
submit case or rebuttal briefs in this
proceeding are requested to submit with
each argument a statement of the issue.
Parties are also encouraged to provide a
summary of the arguments not to exceed
five pages and a table of statutes,
regulations, and cases cited. See 19 CFR
351.309(c)(2). Furthermore, the
Department requests that parties
provide the public versions of their case
and rebuttal briefs in electronic format
(e.g., Microsoft Word, .pdf, etc.).
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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 within 30 days of
publication of these preliminary results.
See 19 CFR 351.310(c). Requests should
contain the following information: (1)
The party’s name, address, and
telephone number; (2) the number of
participants; and (3) a list of the issues
to be discussed. Issues raised in the
hearing will be limited to those raised
in the case and rebuttal briefs. Any
hearing, if requested, will be held 37
days after the date of publication, or the
first business day thereafter, unless the
Department alters the date pursuant to
19 CFR 351.310(d)(1).
The Department intends to issue the
final results of this administrative
review, which will include the results of
its analysis of issues raised in any such
comments, within 120 days of
publication of these preliminary results,
pursuant to section 751(a)(3)(A) of the
Act.
Assessment Rates
Upon issuance of the final results, the
Department will determine, and CBP
shall assess, antidumping duties on all
appropriate entries. We preliminarily
intend to instruct CBP to apply a
dumping margin of 44.36 percent ad
valorem to PET film from Brazil that
was produced and/or exported by
Terphane and entered, or withdrawn
from warehouse, for consumption
during the POR. The Department
intends to issue appropriate assessment
instructions directly to CBP 15 days
after the date of publication of the final
results of this review.
Cash Deposit Requirements
The following cash deposit
requirements will be effective upon
publication of the notice of final results
of administrative review for all
shipments of the subject merchandise
entered, or withdrawn from warehouse,
for consumption on or after the
publication date of the final results, as
provided by section 751(a)(2)(C) of the
Act: (1) The cash deposit rate for
Terphane will be the rate established in
the final results of this review; (2) for
other previously reviewed or
investigated companies, 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 or the
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; (4) if neither the
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48125
exporter nor the manufacturer has its
own rate, the cash deposit rate will be
28.72 percent, the all-others rate
established in the Final Determination.
These cash deposit requirements, when
imposed, shall remain in effect until
further notice.
Notification to Importers
This notice also 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.
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: July 29, 2011.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import
Administration.
[FR Doc. 2011–20072 Filed 8–5–11; 8:45 am]
BILLING CODE 3510–DS–P
DEPARTMENT OF COMMERCE
International Trade Administration
[A–475–818]
Certain Pasta From Italy: Notice of
Preliminary Results of Antidumping
Duty Administrative Review
Import Administration,
International Trade Administration,
Department of Commerce.
SUMMARY: In response to requests by
interested parties, the Department of
Commerce (‘‘the Department’’) is
conducting an administrative review of
the antidumping duty order on certain
pasta (‘‘pasta’’) from Italy for the period
of review (‘‘POR’’) July 1, 2009, through
June 30, 2010. This review covers two
producers/exporters of subject
merchandise: Molino e Pastificio
Tomasello S.p.A. (‘‘Tomasello’’) and
Pastificio Lucio Garofalo S.p.A.
(‘‘Garofalo’’). We preliminarily
determine that during the POR,
Tomasello and Garofalo sold subject
merchandise at less than normal value
(‘‘NV’’). If these preliminary results are
adopted in the final results of this
administrative review, we will instruct
U.S. Customs and Border Protection
(‘‘CBP’’) to assess antidumping duties
on all appropriate entries of subject
merchandise during the POR. Interested
AGENCY:
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08AUN1
]]>Agencies
[Federal Register Volume 76, Number 152 (Monday, August 8, 2011)]
[Notices]
[Pages 48122-48125]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-20072]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
[A-351-841]
Polyethylene Terephthalate Film, Sheet, and Strip From Brazil:
Preliminary Results of Antidumping Duty Administrative Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce (the Department) is conducting an
administrative review of the antidumping duty order on polyethylene
terephthalate film, sheet, and strip (PET film) from Brazil. This
administrative review covers one respondent, Terphane, Inc. (Terphane)
and the period of review (POR) is November 1, 2009 through October 31,
2010. Since Terphane did not respond to the Department's requests for
information, we have assigned Terphane a margin based on adverse facts
available (AFA). If these preliminary results are adopted in our final
results of this review, we will instruct U.S. Customs and Border
Protection (CBP) to assess antidumping duties on all appropriate
entries of subject merchandise made during the POR.
Interested parties are invited to comment on these preliminary
results. We intend to issue the final results no later than 120 days
from the date of publication of this notice, pursuant to section
751(a)(3)(A) of the Tariff Act of 1930, as amended (the Act).
DATES: Effective Date: August 8, 2011.
FOR FURTHER INFORMATION CONTACT: Deborah Scott or Robert James, AD/CVD
Operations, Office 7, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-
2657 or (202) 482-0649, respectively.
SUPPLEMENTARY INFORMATION:
[[Page 48123]]
Background
On November 10, 2008, the Department published the antidumping duty
order on PET film from Brazil. See Polyethylene Terephthalate Film,
Sheet, and Strip From Brazil, the People's Republic of China and the
United Arab Emirates: Antidumping Duty Orders and Amended Final
Determination of Sales at Less Than Fair Value for the United Arab
Emirates, 73 FR 66595 (November 10, 2008). On November 1, 2010, the
Department published Antidumping or Countervailing Duty Order, Finding,
or Suspended Investigation; Opportunity To Request Administrative
Review, 75 FR 67079 (November 1, 2010). On November 30, 2010, DuPont
Teijin Films, Mitsubishi Polyester Film, Inc., SKC, Inc., and Toray
Plastics (America), Inc. (collectively, petitioners) requested that the
Department conduct an administrative review of Terphane's sales of PET
film from Brazil made during the period November 1, 2009, through
October 31, 2010. On December 28, 2010, the Department published a
notice of initiation for an administrative review of PET film from
Brazil for Terphane for the period November 1, 2009, through October
31, 2010. See Initiation of Antidumping and Countervailing Duty
Administrative Reviews and Request for Revocation in Part, 75 FR 81565
(December 28, 2010).
On February 9, 2011, the Department issued an antidumping duty
questionnaire to Terphane. On March 14, 2011, Terphane submitted a
letter to the Department stating that during the POR, it did not ship
any subject merchandise to the United States and all of its shipments
to the United States consisted of merchandise outside the scope of the
order on PET film from Brazil. Terphane also indicated it did not have
any sales or offers for sale of subject merchandise to the United
States during the POR. Terphane thus informed the Department it did not
intend to respond to the Department's questionnaire or otherwise
participate in the administrative review.
On May 11, 2011, the Department placed on the record of this
proceeding data from CBP regarding imports of PET film during the POR
and entry documentation for a certain entry. On May 27, 2011, the
Department issued a letter to Terphane, stating that information in the
CBP data suggested subject merchandise had entered the United States
during the POR. The Department therefore requested that Terphane review
the information in the Department's May 11, 2011, memorandum to the
file and provide clarification as to its claim of no shipments;
further, the Department asked that Terphane respond to the February 9,
2011, questionnaire if indeed it had sales, entries or shipments of
subject merchandise during the POR.
On June 10, 2011, Terphane submitted a letter stating it did not
review the May 11, 2011, memorandum, but it did examine its own
transactions during the POR and had identified one ``de minimis'' entry
of subject merchandise. Terphane declared this entry had been
accidentally shipped to the United States prior to the POR, and not
pursuant to any sale or offer for sale, and that it paid cash deposits
on this merchandise when it entered the United States during the POR.
As a result, Terphane confirmed it would not be responding to the
Department's questionnaire or otherwise participating in this
administrative review.
Period of Review
The POR is November 1, 2009, through October 31, 2010.
Scope of the Order
The products covered by this order are all gauges of raw, pre-
treated, or primed PET film, whether extruded or co-extruded. Excluded
are metallized films and other finished films that have had at least
one of their surfaces modified by the application of a performance-
enhancing resinous or inorganic layer more than 0.00001 inches thick.
Also excluded is roller transport cleaning film which has at least one
of its surfaces modified by application of 0.5 micrometers of SBR
latex. Tracing and drafting film is also excluded. PET film is
classifiable under subheading 3920.62.00.90 of the Harmonized Tariff
Schedule of the United States (HTSUS). While HTSUS subheadings are
provided for convenience and customs purposes, our written description
of the scope of these orders is dispositive.
Application of Facts Available
Section 776(a) of the Act provides that the Department shall,
subject to section 782(d) of the Act, apply ``the facts otherwise
available'' if (1) necessary information is not available on the record
of an antidumping proceeding or (2) an interested party or any other
person: (A) withholds information that has been requested by the
administering authority; (B) fails to provide such information by the
deadlines for the submission of the information or in the form and
manner requested, subject to subsections (c)(1) and (e) of section 782
of the Act; (C) significantly impedes a proceeding under this title; or
(D) provides such information but the information cannot be verified as
provided in 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 with
an opportunity to remedy or explain the deficiency. Section 782(d) of
the Act further provides that if the party submits further information
that is unsatisfactory or untimely, the Department may, subject to
subsection (e), disregard all or part of the original and subsequent
responses. 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 the applicable requirements established by the administering
authority'' if the information is submitted in a timely manner, can be
verified, is not so incomplete that it cannot be used, and 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.
In this case, Terphane did not provide a response to our request
for information and information necessary to make a determination in
this segment of the proceeding is not on the record. In fact, Terphane
specifically stated in its letter of March 14, 2011, and confirmed in
its letter of June 10, 2011, that it would not be responding to the
Department's questionnaire or otherwise participating in this
administrative review. Thus, the Department preliminarily determines
that necessary information is not available on the record to serve as
the basis for the calculation of Terphane's margin. See section
776(a)(1) of the Act. We also preliminarily find that Terphane has
withheld information requested by the Department and significantly
impeded the proceeding. See section 776(a)(2)(A) and (C) of the Act;
see also e.g., Certain Lined Paper Products from India: Notice of Final
Results of the First Antidumping Duty Administrative Review, 74 FR
17149 (April 14, 2009), and accompanying Issues and Decision Memorandum
at Comment 2.
Therefore, pursuant to sections 776(a)(1) and 776(a)(2)(A) and (C)
of the Act, the Department preliminarily determines that the use of the
facts otherwise available is warranted for Terphane. Because Terphane
did not
[[Page 48124]]
respond to the Department's request for information, sections 782(d)
and (e) of the Act are not applicable in this case.
Application of Adverse Facts Available and Selection of Adverse Facts
Available Rate
Section 776(b) of the Act provides that, if the Department finds an
interested party has failed to cooperate by not acting to the best of
its ability to comply with requests for information, the Department may
use an inference that is adverse to the interests of that party in
selecting from the facts otherwise available. See, e.g., Notice of
Final Results of Antidumping Duty Administrative Review, and Final
Determination to Revoke the Order In Part: Individually Quick Frozen
Red Raspberries from Chile, 72 FR 70295, 70297 (December 11, 2007).
Adverse inferences are appropriate ``to ensure that the party does not
obtain a more favorable result by failing to cooperate than if it had
cooperated fully.'' See Statement of Administrative Action accompanying
the Uruguay Round Agreements Act, H.R. Doc. No. 103-316, Vol. 1 (1994)
(SAA) at 870. Furthermore, ``affirmative evidence of bad faith on the
part of a respondent is not required before the Department may make an
adverse inference.'' See Antidumping Duties; Countervailing Duties;
Final Rule, 62 FR 27296, 27340 (May 19, 1997); see also Nippon Steel
Corp. v. United States, 337 F.3d 1373, 1382-83 (Fed. Cir. 2003). In
this case, the Department finds Terphane failed to cooperate to the
best of its ability in this proceeding by refusing to respond to the
Department's antidumping questionnaire and otherwise participate in the
Department's administrative review. Therefore, since Terphane did not
act to the best of its ability by complying with the Department's
request for information, the Department has preliminarily determined an
adverse inference is warranted in selecting from the facts otherwise
available pursuant to section 776(b) of the Act. See, e.g., Notice of
Final Determination of Sales at Less Than Fair Value: Circular Seamless
Stainless Steel Hollow Products From Japan, 65 FR 42985, 42986 (July
12, 2000) (the Department applied total AFA where a respondent failed
to respond to subsequent antidumping questionnaires).
Section 776(b) of the Act provides the Department may use, as an
adverse inference, information derived from the petition, the final
determination in the investigation, any previous administrative review,
or other information placed on the record. The Department's practice,
when selecting an AFA rate from among the possible sources of
information, has been to ensure that the margin is sufficiently adverse
``as to effectuate the statutory purposes of the adverse facts
available rule to induce respondents to provide the Department with
complete and accurate information in a timely manner.'' See, e.g.,
Certain Steel Concrete Reinforcing Bars from Turkey; Final Results and
Rescission of Antidumping Duty Administrative Review in Part, 71 FR
65082, 65084 (November 7, 2006).
The Department preliminarily determines to assign Terphane an AFA
rate of 44.36 percent. This rate is Terphane's cash deposit rate from
the investigation and represents the highest margin alleged in the
petition. See Notice of Final Determination of Sales at Less Than Fair
Value: Polyethylene Terephthalate Film, Sheet, and Strip from Brazil,
73 FR 55035, 55036 (September 24, 2008) (Final Determination). This
rate is also Terphane's margin from the immediately preceding
administrative review that was based on AFA. See Polyethylene
Terephthalate Film, Sheet, and Strip From Brazil: Final Results of
Antidumping Duty Administrative Review, 75 FR 75172 (December 2, 2010).
Corroboration of Secondary Information Used as Adverse Facts Available
Section 776(c) of the Act provides that, where the Department
selects from among the facts otherwise available and relies on
``secondary information,'' the Department shall, to the extent
practicable, corroborate that information from independent sources
reasonably at the Department's disposal. Information from a prior
segment of the proceeding constitutes secondary information. See SAA at
870; see also e.g., Antifriction Bearings and Parts Thereof From
France, Germany, Italy, Japan, Singapore, and the United Kingdom: Final
Results of Antidumping Duty Administrative Reviews, Rescission of
Administrative Reviews in Part, and Determination To Revoke Order in
Part, 69 FR 55574, 55577 (September 15, 2004). The word ``corroborate''
means the Department will satisfy itself that the secondary information
to be used has probative value. See SAA at 870; see also Certain Frozen
Warmwater Shrimp from Brazil: Final Results and Partial Rescission of
Antidumping Duty Administrative Review, 73 FR 39940 (July 11, 2008),
and accompanying Issues and Decision Memorandum at Comment 1.
To corroborate secondary information, the Department will, to the
extent practicable, examine the reliability and relevance of the
information to be used. Id. Unlike other types of information such as
input costs or selling expenses, there are no independent sources for
calculated dumping margins. The only sources for calculated margins are
administrative determinations.
In an administrative review, if the Department chooses to use as
facts available a petition rate which was corroborated in the less-
than-fair-value (LTFV) investigation and no information has been
presented in the current review that calls into the question of
reliability of this information, the information is reliable. See,
e.g., Certain Tissue Paper from the People's Republic of China:
Preliminary Results and Preliminary Rescission, In Part, of Antidumping
Duty Administrative Review, 72 FR 17477, 17480-81 (April 9, 2007),
unchanged in Certain Tissue Paper Products from the People's Republic
of China: Final Results and Final Rescission, In Part, of Antidumping
Duty Administrative Review, 72 FR 58642 (October 16, 2007). Because the
AFA rate of 44.36 percent in this review was corroborated in the LTFV
investigation and the immediately preceding administrative review of
Terphane, and no information in the current review calls into question
the reliability of this rate, we find the AFA rate of 44.36 percent is
reliable. See Notice of Preliminary Determination of Sales at Less Than
Fair Value: Polyethylene Terephthalate Film, Sheet, and Strip from
Brazil, 73 FR 24560 (May 5, 2008), unchanged in Final Determination.
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 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
discredited or judicially invalidated. See D & L Supply Co. v. United
States, 113 F.3d 1220, 1221 (Fed. Cir. 1997).
[[Page 48125]]
In this review, there are no circumstances present to indicate that
the selected margin is not appropriate as AFA. The margin we have
selected is the margin we determined for Terphane in the LTFV
investigation and represents the highest margin alleged in the
petition. This is also the margin we assigned to Terphane in the
immediately preceding administrative review. Moreover, because Terphane
refused to respond to the Department's questionnaire, there is no
information on the record of this review that demonstrates that 44.36
percent is not an appropriate AFA rate for Terphane. Thus, the
Department considers this dumping margin relevant for the use of AFA
for this administrative review.
As the AFA rate is both reliable and relevant, we find it has
probative value. Therefore, with the information at our disposal for
the corroboration of this AFA rate, we find the rate of 44.36 percent
is corroborated to the extent practicable in accordance with section
776(c) of the Act. We preliminarily find that use of the rate of 44.36
percent as AFA is sufficiently high to ensure that Terphane does not
benefit from failing to cooperate in our review by choosing not to
respond to the Department's antidumping questionnaire and otherwise
participate in the Department's administrative review.
Preliminary Results of Review
We preliminarily determine that the following antidumping duty
margin exists for the period November 1, 2009, through October 31,
2010:
------------------------------------------------------------------------
Margin
Producer/Exporter (percent)
------------------------------------------------------------------------
Terphane, Inc........................................... 44.36
------------------------------------------------------------------------
Disclosure and Public Comment
Interested parties may submit case briefs no later than 30 days
after the date of publication of these preliminary results of review.
See 19 CFR 351.309(c)(1)(ii). Rebuttal briefs, limited to issues raised
in the case briefs, may be filed no later than five days after the time
limit for filing the case briefs. See 19 CFR 351.309(d)(1). Parties who
submit case or rebuttal briefs in this proceeding are requested to
submit with each argument a statement of the issue. Parties are also
encouraged to provide a summary of the arguments not to exceed five
pages and a table of statutes, regulations, and cases cited. See 19 CFR
351.309(c)(2). Furthermore, the Department requests that parties
provide the public versions of their case and rebuttal briefs in
electronic format (e.g., Microsoft Word, .pdf, 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 within 30 days of publication of
these preliminary results. See 19 CFR 351.310(c). Requests should
contain the following information: (1) The party's name, address, and
telephone number; (2) the number of participants; and (3) a list of the
issues to be discussed. Issues raised in the hearing will be limited to
those raised in the case and rebuttal briefs. Any hearing, if
requested, will be held 37 days after the date of publication, or the
first business day thereafter, unless the Department alters the date
pursuant to 19 CFR 351.310(d)(1).
The Department intends to issue the final results of this
administrative review, which will include the results of its analysis
of issues raised in any such comments, within 120 days of publication
of these preliminary results, pursuant to section 751(a)(3)(A) of the
Act.
Assessment Rates
Upon issuance of the final results, the Department will determine,
and CBP shall assess, antidumping duties on all appropriate entries. We
preliminarily intend to instruct CBP to apply a dumping margin of 44.36
percent ad valorem to PET film from Brazil that was produced and/or
exported by Terphane and entered, or withdrawn from warehouse, for
consumption during the POR. The Department intends to issue appropriate
assessment instructions directly to CBP 15 days after the date of
publication of the final results of this review.
Cash Deposit Requirements
The following cash deposit requirements will be effective upon
publication of the notice of final results of administrative review for
all shipments of the subject merchandise entered, or withdrawn from
warehouse, for consumption on or after the publication date of the
final results, as provided by section 751(a)(2)(C) of the Act: (1) The
cash deposit rate for Terphane will be the rate established in the
final results of this review; (2) for other previously reviewed or
investigated companies, 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 or the 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; (4) if neither the exporter nor the manufacturer has its
own rate, the cash deposit rate will be 28.72 percent, the all-others
rate established in the Final Determination. These cash deposit
requirements, when imposed, shall remain in effect until further
notice.
Notification to Importers
This notice also 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.
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: July 29, 2011.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 2011-20072 Filed 8-5-11; 8:45 am]
BILLING CODE 3510-DS-P
