Laminated Woven Sacks From the People's Republic of China: Negative Preliminary Determination of Circumvention of the Antidumping and Countervailing Duty Orders, 72161-72164 [2011-30164]
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Federal Register / Vol. 76, No. 225 / Tuesday, November 22, 2011 / Notices
Constitution and Pennsylvania Avenues
NW., Washington, DC. The Committee
advises the Office of the Assistant
Secretary for Export Administration on
implementation of the Export
Administration Regulations (EAR) and
provides for continuing review to
update the EAR as needed.
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Public Session
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5. Working group reports.
6. Automated Export System (AES)
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by the Public.
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that the laminated woven sacks subject
to this inquiry are not circumventing the
antidumping and countervailing duty
orders on laminated woven sacks from
the People’s Republic of China (‘‘PRC’’),
as provided in section 781(d) of the
Tariff Act of 1930, as amended (‘‘the
Act’’).1
DATES: Effective Date: November 22,
2011.
FOR FURTHER INFORMATION CONTACT:
Jamie Blair-Walker, 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
Dated: November 16, 2011
Yvette Springer,
Committee Liaison Officer.
On January 26, 2011, pursuant to
sections 781(c) and (d) of the Act, and
19 CFR 351.225(i) and (j), Petitioners 2
submitted requests for the Department
to initiate and conduct both a minor
alterations inquiry and a laterdeveloped merchandise anticircumvention inquiry to determine
whether laminated woven sacks printed
with two colors in register and with the
use of a screening process are
circumventing the Orders.3 On March
25, 2011, Petitioners withdrew their
request for the Department to initiate a
minor alterations anti-circumvention
inquiry pursuant to 781(c) of the Act
and 19 CFR 351.225(i).4 On April 28,
2011, the Department initiated a laterdeveloped merchandise anticircumvention inquiry.5
On May 3, July 18, and September 2,
2011, the Department issued various
questionnaires to interested parties. On
July 15, 2011, the Department held a
meeting with Petitioners to discuss the
anti-circumvention inquiry.
[FR Doc. 2011–30052 Filed 11–21–11; 8:45 am]
Scope of the Orders
BILLING CODE 3510–JT–P
The merchandise covered by the
orders is laminated woven sacks.
DEPARTMENT OF COMMERCE
International Trade Administration
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[A–570–916;C–570–917]
Laminated Woven Sacks From the
People’s Republic of China: Negative
Preliminary Determination of
Circumvention of the Antidumping and
Countervailing Duty Orders
Import Administration,
International Trade Administration,
Department of Commerce.
AGENCY:
Preliminary Determination
The Department of Commerce (‘‘the
Department’’) preliminarily determines
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1 See Notice of Antidumping Duty Order:
Laminated Woven Sacks From the People’s
Republic of China, 73 FR 45941 (August 7, 2008);
see also Laminated Woven Sacks From the People’s
Republic of China: Countervailing Duty Order, 73
FR 45955 (August 7, 2008), (collectively, ‘‘Orders’’).
2 The Laminated Woven Sacks Committee and its
individual members, Coating Excellence
International, LLC and Polytex Fibers Corporation,
(collectively, ‘‘Petitioners’’).
3 See Petitioners’ Requests for Circumvention
Inquiries dated January 21, 2011 and February 4,
2011.
4 See Petitioners’ Partial Withdrawal of Request
For Determination of Circumvention (Printed Ink
Colors) dated March 25, 2011.
5 See Laminated Woven Sacks From the People’s
Republic of China: Initiation of Anti-Circumvention
Inquiry, 76 FR 23791 (April 28, 2011) (‘‘Initiation
Notice’’).
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72161
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; 6 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.
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 this
order is dispositive.
Scope of the Anti-Circumvention
Inquiry
The merchandise subject to the anticircumvention inquiry is laminated
6 ‘‘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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72162
Federal Register / Vol. 76, No. 225 / Tuesday, November 22, 2011 / Notices
woven sacks produced with two ink
colors printed in register and a
screening process (‘‘screening-process
sacks’’). Petitioners allege that Chinese
producers of screening-process sacks
have adapted the screening process to
create graphics that appear to have three
or more distinct colors visible, although
they are produced using only two inks
and a screen. Petitioners contend that
such graphics would normally be
printed using three inks printed in
register at three different print stations,
which would then make them subject
merchandise. However, by adapting the
screening process, Petitioners state that
Chinese producers of screening-process
sacks are able to produce similar
graphics while only using two inks, thus
making merchandise that is out of scope
and not subject to antidumping and
countervailing duties.
The screening process at issue, as
described by interested parties, only
uses two ink colors printed in register
at two different print stations. However,
the artwork, by use of a screen, allows
for different shades of a single color to
appear on the bag. Thus, when printed,
the screening-process sacks appear to
have been printed with more than two
colored inks because more than two
distinct colors are visible on the
finished product. As an example of the
screening-process sacks, the Department
placed on the record of both
proceedings five laminated woven sacks
imported by Shapiro: Two individual
Manna Pro Horse Feed sacks, two
individual Red Head Deer Corn sacks,
and one Manna Pro Calf-Manna sack.7
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Negative Preliminary Determination of
Circumvention
For the reasons described below, we
preliminarily determine that the
screening-process sacks are not laterdeveloped merchandise because they
were commercially available at the time
of the initiation of the less-than-fairvalue (‘‘LTFV’’) investigation on
laminated woven sacks from the PRC.
Therefore, we also preliminarily
determine that the screening-process
sacks are not circumventing the Orders
within the meaning of section 781(d) of
the Act.
Applicable Statute
Section 781(d)(1) of the Act provides
that the Department may find
7 See
Memo to the File from Jamie Blair-Walker
regarding Anti-circumvention Inquiry of Laminated
Woven Sacks from the People’s Republic of China
on the subject of Meeting with Counsel for the
Laminated Woven Sacks Committee and its
individual members, Coating Excellence
International, LLC and Polytex Fibers Corporation,
dated July 15, 2011.
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circumvention of an antidumping or
countervailing duty order when
merchandise is developed after an
investigation is initiated (‘‘laterdeveloped merchandise’’). In
conducting later-developed
merchandise anti-circumvention
inquiries, under section 781(d)(1) of the
Act, the Department first determines
whether the merchandise under
consideration is ‘‘later-developed.’’ 8 To
do so, the Department examines
whether the merchandise at issue was
commercially available at the time of
the initiation of the LTFV
investigation.9 We define commercial
availability as ‘‘present in the
commercial market or fully developed,
i.e., tested and ready for commercial
production, but not yet in the
commercial market.’’ 10 In other words,
the Department normally considers: (1)
Whether it was possible, at all, to
manufacture the product in question;
and (2) if the technology existed,
whether the product was available in
the market.11
If the Department determines that
such merchandise was not
commercially available at the time of
the initiation of the LTFV investigation,
and is thus later-developed, the
Department will consider whether the
later-developed merchandise is covered
8 See Later-Developed Merchandise
Anticircumvention Inquiry of the Antidumping
Duty Order on Petroleum Wax Candles from the
People’s Republic of China: Affirmative Final
Determination of Circumvention of the
Antidumping Duty Order, 71 FR 59075 (October 6,
2006) (‘‘Candles Anticircumvention Final’’) and
accompanying Issues and Decision Memorandum at
Comment 4; see also Erasable Programmable Read
Only Memories from Japan; Final Scope Ruling, 57
FR 11599 (April 6, 1992) (‘‘EPROMs from Japan’’);
Electrolytic Manganese Dioxide from Japan; Final
Scope Ruling, 57 FR 395 (January 6, 1992)(‘‘EMD
from Japan’’); Portable Electronic Typewriters from
Japan, 55 FR 47358 (November 13, 1990).
9 See Candles Anticircumvention Final, 71 FR at
59077 and Comment 4, affirmed by Target Corp. v.
United States, 626 F. Supp. 2d 1285 (CIT 2009), and
Target Corp. v. United States, 609 F.3d 1352, 1358–
1360 (Fed. Cir. 2010) (‘‘Target Corp. III’’) (holding
that Commerce’s interpretation of later-developed
as turning on whether the merchandise was
commercially available at the time of the
investigation is reasonable).
10 See Target Corp. III, 609 F.3d at 1358; see also
Candles Anti-circumvention Final at Comment 4.
11 See Anticircumvention Inquiry of the
Antidumping Duty Order on Petroleum Wax
Candles from the People’s Republic of China:
Affirmative Preliminary Determination of
Circumvention of the Antidumping Duty Order, 71
FR 32033, 32038 (June 2, 2006), unchanged in
Candles Anticircumvention Final; see also EPROMs
from Japan, 57 FR at 11602–3 (examining whether
the technology to develop the new product existed
at the time of the original investigation); Television
Receiving Sets, Monochrome and Color, from Japan:
Final Scope Ruling, 56 FR 66841 (December 26,
1991) (noting that LCD TV technology did not exist
at the time the original product descriptions were
developed).
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by the order by evaluating whether the
general physical characteristics of the
merchandise under consideration are
the same as subject merchandise
covered by the order,12 whether the
expectations of the ultimate purchasers
of the merchandise under consideration
are no different than the expectations of
the ultimate purchasers of subject
merchandise,13 whether the ultimate
use of the subject merchandise and the
merchandise under consideration are
the same,14 whether the channels of
trade of both products are the same,15
and whether there are any differences in
the advertisement and display of both
products.16 The Department, after taking
into account any advice provided by the
United States International Trade
Commission (‘‘ITC’’), under section
781(e) of the Act, may include such
imported merchandise within the scope
of an order at any time an order is in
effect.
Commercial Availability Analysis
In determining the commercial
availability of the screening-process
sacks at issue in this inquiry, the
Department first examined whether it
was possible to produce the
merchandise. The Department then
examined if there was evidence of the
screening-process sacks being
commercially available in the market
prior to the initiation of the LTFV
investigation.
As noted by the ITC, the developing
nature of the industry at the time of the
LTFV investigation could have had
tempered the demand for screeningprocess sacks.17 Therefore, the
Department examined whether the
technology needed to produce
screening-process sacks existed prior to
the LTFV investigation as part of these
preliminary results. Based on the record
evidence, the Department finds that the
technology for producing screeningprocess sacks was available prior to the
LTFV investigation. From 2005–2007,
all interested parties providing
information and comments for this
record purchased the technology to use
a screening process in production of
laminated woven sacks, although the
number of inks that were printed on the
laminated woven sacks varied for
different products (i.e., included the use
of only two inks as well as the use of
12 See
section 781(d)(1)(A) of the Act.
section 781(d)(1)(B) of the Act.
14 See section 781(d)(1)(C) of the Act.
15 See section 781(d)(1)(D) of the Act.
16 See section 781(d)(1)(E) of the Act.
17 See Laminated Woven Sacks from China,
Investigation Nos. 701–TA–450 and 731–TA–1122
(Preliminary), ITC Publication 3942 (August 2007)
(‘‘ITC Preliminary Determination’’) at 31.
13 See
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Federal Register / Vol. 76, No. 225 / Tuesday, November 22, 2011 / Notices
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three or more).18 Furthermore, all
parties agree that the screening
technology used on laminated woven
sacks was not new at the time of the
initiation of the LTFV investigation.19
With regard to whether the screeningprocess sacks were available in the
market at the time of the LTFV
investigation, in response to the
initiation of this anti-circumvention
inquiry, Shapiro submitted evidence of
at least one sale destined for the United
States of the screening-process sacks.
Specifically, Shapiro provided an
invoice, packing list, bill-of-lading,
purchase order, and approved screen
artwork associated with the 2005 sale of
the Manna Pro Horse Feed Sack.20 The
purchase order references the use of
reverse printing with two inks: Red PMS
186 and Blue PMS 072.21 The
corresponding artwork, signed and
approved for production on February
15, 2005, in conjunction with the
related paperwork discussed above
demonstrates the use of a screen in
production.22 Shapiro’s supplier’s use
of the screening process in combination
with two inks in production of
laminated woven sacks beginning in
2005 was also confirmed in an affidavit
from the Assistant Vice-President of
Purchasing at Manna Pro, the customer
that coordinates the design of, and buys,
the Manna Pro Horse Feed Sack from
Shapiro.23 Shapiro also stated that it
sold 147,842.50 lbs. of the Manna Pro
Horse Feed Sack prior to the date of
initiation of the LTFV investigation.24
Although Shapiro states that it
permanently changed the design of the
art work to accommodate the use of only
two inks and a screening process with
respect to the specific sacks on this
record after the publication of the
preliminary determination in the LTFV
investigation, Shapiro demonstrated
that it used two inks and a screening
process for some of the designs at least
occasionally prior to the initiation of the
18 See Commercial Packaging’s Supplemental
Questionnaire Response dated September 16, 2011
at 2; see also Response of the Laminated Woven
Sacks Committee to the Department’s Questionnaire
of September 2, 2011 dated September 16, 2011 at
4; see also Shapiro’s Supplemental Questionnaire
Response dated September 16, 2011 at 2.
19 See Commercial Packaging’s Supplemental
Questionnaire Response dated September 16, 2011
at 3; see also Petitioners’ Questionnaire Response
dated May 18, 2011 at 12; see also Shapiro’s
Supplemental Questionnaire Response dated
September 16, 2011 at 2.
20 See Shapiro’s Comments on Initiation dated
May 19, 2011 at Exhibit 1.
21 See Id.
22 See Id. and at Exhibit 2.
23 See Id. at Exhibit 3.
24 See Id. at 2.
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LTFV investigation.25 Finally, as
demonstrated by an affidavit supplied
by Commercial Packaging, the screening
process has been used to produce
graphics on laminated woven sacks
prior to the LTFV investigation.26
Therefore, the above information on the
record demonstrates that sacks
produced with a screening process and
two inks were commercially available
prior to the LTFV investigation.
Finally, parties provided affidavits on
the record stating that using only two
inks and a screening process reduces the
cost of production.27 Although
Petitioners contend that, despite the use
of only two print stands and fewer inks,
the development of the artwork and the
time needed to readjust the machinery
could possibly increase the production
costs of screening-process sacks versus
subject merchandise, the Department
finds that if the customer seeks a
simpler graphic, the use of only two
inks and a screening process is a viable
option to produce a less complex and
possibly more affordable image.28
As demonstrated above, the screening
technology existed prior to the LTFV
investigation and had been applied to
laminated woven sacks since 2005
(including with the use of only two
inks). Thus, the Department finds that it
was possible to produce screeningprocess sacks prior to the LTFV
investigation and concludes that the
screening-process sacks were
commercially available, i.e., tested and
ready for commercial production prior
to the LTFV investigation.
Summary of Analysis
After analyzing the above factors, the
Department has made a preliminary
determination that the screeningprocess sacks are not later-developed
merchandise.29 The agreement of all
parties that the technology was available
prior to the initiation of the LTFV
investigation coupled with the fact that
Shapiro demonstrated the sale of
screening-process sacks to the United
States has led to the Department’s
preliminary determination that the
screening-process sacks were
commercially available prior to the
25 See Shapiro’s Supplemental Questionnaire
Response dated July 28, 2011 at 1.
26 See Commercial Packaging’s Comments on
Petitioners’ Submission Dated May 17, 2011 dated
June 2, 2011 at 9 and Exhibit 2.
27 See Shapiro’s Comments on Initiation dated
May 19, 2011 at Exhibit 3.
28 See Commercial Packaging’s Comments on
Petitioners’ Submission Dated May 17, 2011 dated
June 2, 2011 at Exhibit 2.
29 See Candles Anticircumvention Final, 71 FR at
59075 at Comment 4; see also EPROMs from Japan;
EMD from Japan; Portable Electronic Typewriters
from Japan, 55 FR 47358 (November 13, 1990).
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72163
initiation of the LTFV investigation and
are therefore not later-developed
merchandise. Furthermore, because the
Department has preliminarily
determined that the screening-process
sacks are not later-developed
merchandise, the Department does not
need to consider the criteria in section
781(d) of the Act to determine if the
screening-process sacks are subject
merchandise.30 Therefore, we
preliminarily determine that, because
the sacks are not later-developed
merchandise, they do not circumvent
the Orders.
Public Comment
Interested parties may submit case
briefs and/or written comments no later
than 30 days after the date of
publication of these preliminary results
of review.31 Rebuttal briefs and rebuttals
to written comments, limited to issues
raised in such briefs or comments may
be filed no later than five days after the
deadline for filing case briefs.32 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.33 Case briefs and
rebuttal briefs must be submitted on
both proceedings.
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
after the date of publication of this
notice, pursuant to 19 CFR 351.310.
Requests should contain the party’s
name, address, and telephone number,
the number of participants, and a list of
the issues to be discussed. At the
hearing, each party may make an
affirmative presentation only on issues
raised in that party’s case brief and may
make rebuttal presentations only on
arguments included in that party’s
rebuttal brief. If a hearing is requested,
we will notify those parties that
requested a hearing of a hearing date
and time.
Final Determination
The final determination with respect
to this anti-circumvention inquiry will
be issued no later than February 16,
2012, including the results of the
30 See Electroytic Manganese Dioxide from Japan;
Preliminary Scope Ruling, 56 FR 56977 (Nov 7,
1991) (‘‘if a product is developed before an
antidumping case is initiated, the later-developed
product provision is clearly inapplicable’’)
unchanged in final EMD from Japan.
31 See 19 CFR 351.309(c)(1)(ii).
32 See 19 CFR 351.309(d).
33 See 19 CFR 351.309(c) and (d).
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Federal Register / Vol. 76, No. 225 / Tuesday, November 22, 2011 / Notices
November 7, 2011 (hereinafter, the
Supplement to the AD/CVD Petitions,1
the Supplement to the AD India
Petition, the Supplement to the AD
Oman Petition, the Supplement to the
AD United Arab Emirates Petition, and
Dated: November 15, 2011.
the Supplement to the AD Vietnam
Paul Piquado,
Petition). On November 4, 2011, the
Assistant Secretary for Import
Department issued a request for
Administration.
additional information and clarification
[FR Doc. 2011–30164 Filed 11–21–11; 8:45 am]
regarding the scope of the petitions, and
BILLING CODE 3510–DS–P
Petitioners’ response to this request was
included in the Supplement to the AD/
CVD Petitions. On November 8, 2011,
DEPARTMENT OF COMMERCE
Petitioners agreed to modified scope
language. See the November 10, 2011
International Trade Administration
memorandum from Steve Bezirganian
[A–533–852, A–523–801, A–520–805, A–552–
through Richard Weible to the File.
811]
On November 8, 2011, the Department
Circular Welded Carbon-Quality Steel
requested additional clarification on
Pipe From India, the Sultanate of
issues involving industry support.
Oman, the United Arab Emirates, and
Petitioners filed a response to this
the Socialist Republic of Vietnam:
request on November 10, 2011
Initiation of Antidumping Duty
(hereinafter, the Second Supplement to
Investigations
the AD/CVD Petitions). On November 8,
2011, the Department requested
AGENCY: Import Administration,
additional information regarding India
International Trade Administration,
and Vietnam. Petitioners filed responses
Department of Commerce.
to these requests on November 10, 2011
DATES: Effective Date: November 22,
(hereinafter, the Second Supplement to
2011.
the AD India Petition and the Second
FOR FURTHER INFORMATION CONTACT:
Supplement to the AD Vietnam Petition,
Steve Bezirganian, Robert James (India,
respectively). In accordance with
the United Arab Emirates, and
section 732(b) of the Tariff Act of 1930,
Vietnam), or Angelica Mendoza (Oman), as amended (the Act), Petitioners allege
AD/CVD Operations, Office 7, Import
that imports of certain steel pipe from
Administration, International Trade
India, Oman, the UAE, and Vietnam are
Administration, U.S. Department of
being, or are likely to be, sold in the
Commerce, 14th Street and Constitution United States at less than fair value,
Avenue NW., Washington, DC 20230, at within the meaning of section 731 of the
(202) 482–1131, (202) 482–0649, or
Act, and that such imports are
(202) 482–3019, respectively.
materially injuring, or threatening
material injury to, an industry in the
SUPPLEMENTARY INFORMATION:
United States.
The Petitions
The Department finds that Petitioners
On October 26, 2011, the Department
filed the Petitions on behalf of the
of Commerce (the Department) received domestic industry because Petitioners
petitions concerning imports of circular are interested parties as defined in
welded carbon-quality steel pipe
section 771(9)(C) of the Act and have
(certain steel pipe) from India, the
demonstrated sufficient industry
Sultanate of Oman (Oman), the United
support with respect to the antidumping
Arab Emirates (UAE), and the Socialist
duty investigations that Petitioners are
Republic of Vietnam (Vietnam) filed in
requesting that the Department initiate
proper form on behalf of Allied Tube
(see ‘‘Determination of Industry Support
and Conduit, JMC Steel Group,
for the Petitions’’ section below).
Wheatland Tube Company, and United
Period of Investigation
States Steel Corporation (collectively,
Petitioners). See Circular Welded
The period of investigation (POI) for
Carbon-Quality Steel Pipe from India,
India, Oman, and the UAE is October 1,
Oman, the UAE, and Vietnam:
2010, through September 30, 2011. The
Antidumping and Countervailing Duty
POI for Vietnam is April 1, 2011,
Petitions, filed on October 26, 2011
through September 30, 2011. See 19
(hereinafter, the Petitions). On
CFR 351.204(b)(1).
November 1, 2011, the Department
issued requests for additional
1 Petitioners refiled the Supplement to the AD/
information and clarification of certain
CVD Petitions on November 9, 2011, to include a
areas of the Petitions. Petitioners filed
statement that the business proprietary document
‘‘may be released under APO.’’
responses to these requests on
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Department’s analysis of any written
comments. This preliminary negative
circumvention determination is
published in accordance with section
781(d) of the Act and 19 CFR 351.225.
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17:14 Nov 21, 2011
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Scope of Investigations
The product covered by these
investigations is certain steel pipe from
India, Oman, the UAE, and Vietnam.
For a full description of the scopes of
the investigations, see Appendix I
(Scope of the Oman, the UAE, and
Vietnam Investigations) and Appendix
II (Scope of the India AD Investigation)
of this notice.
Comments on Scope of Investigations
During our review of the Petitions, we
discussed the scope with Petitioners to
ensure that it is an accurate reflection of
the products for which the domestic
industry is seeking relief. Moreover, as
discussed in the preamble to the
Department’s regulations (Antidumping
Duties; Countervailing Duties; Final
Rule, 62 FR 27296, 27323 (May 19,
1997)), we are setting aside a period for
interested parties to raise issues
regarding product coverage. Interested
parties that wish to submit comments
on the scope should do so by December
5, 2011, twenty calendar days from the
signature date of this notice. All
comments must be filed on the records
of the India, Oman, the UAE, and
Vietnam antidumping duty
investigations and the India, Oman, the
UAE, and Vietnam countervailing duty
investigations. All comments and
submissions to the Department must be
filed electronically using Import
Administration’s Antidumping
Countervailing Duty Centralized
Electronic Service System (IA
ACCESS).2 An electronically filed
document must be received successfully
in its entirety by the Department’s
electronic records system, IA ACCESS,
by the time and date noted above.
Documents excepted from the electronic
submission requirements must be filed
manually (i.e., in paper form) with the
Import Administration’s APO/Dockets
Unit, Room 1870, U.S. Department of
Commerce, 14th Street and Constitution
Avenue NW., Washington, DC 20230,
and stamped with the date and time of
receipt by the deadline noted above.
Comments on Product Characteristics
for Antidumping Duty Questionnaires
Interested parties may submit
comments regarding the appropriate
characteristics of certain steel pipe to be
reported in response to the
2 See https://www.gpo.gov/fdsys/pkg/FR–2011–07–
06/pdf/2011–16352.pdf for details of the
Department’s Electronic Filing Requirements,
which went into effect on August 5, 2011.
Information on help using IAACCESS can be found
at https://iaaccess.trade.gov/help.aspx and a
handbook can be found at https://iaaccess.trade.
gov/help/Handbook%20on%20Electronic%20
Filling%20Procedures.pdf.
E:\FR\FM\22NON1.SGM
22NON1
]]>Agencies
[Federal Register Volume 76, Number 225 (Tuesday, November 22, 2011)]
[Notices]
[Pages 72161-72164]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-30164]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-916;C-570-917]
Laminated Woven Sacks From the People's Republic of China:
Negative Preliminary Determination of Circumvention of the Antidumping
and Countervailing Duty Orders
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
Preliminary Determination
The Department of Commerce (``the Department'') preliminarily
determines that the laminated woven sacks subject to this inquiry are
not circumventing the antidumping and countervailing duty orders on
laminated woven sacks from the People's Republic of China (``PRC''), as
provided in section 781(d) of the Tariff Act of 1930, as amended (``the
Act'').\1\
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\1\ See Notice of Antidumping Duty Order: Laminated Woven Sacks
From the People's Republic of China, 73 FR 45941 (August 7, 2008);
see also Laminated Woven Sacks From the People's Republic of China:
Countervailing Duty Order, 73 FR 45955 (August 7, 2008),
(collectively, ``Orders'').
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DATES: Effective Date: November 22, 2011.
FOR FURTHER INFORMATION CONTACT: Jamie Blair-Walker, 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 January 26, 2011, pursuant to sections 781(c) and (d) of the
Act, and 19 CFR 351.225(i) and (j), Petitioners \2\ submitted requests
for the Department to initiate and conduct both a minor alterations
inquiry and a later-developed merchandise anti-circumvention inquiry to
determine whether laminated woven sacks printed with two colors in
register and with the use of a screening process are circumventing the
Orders.\3\ On March 25, 2011, Petitioners withdrew their request for
the Department to initiate a minor alterations anti-circumvention
inquiry pursuant to 781(c) of the Act and 19 CFR 351.225(i).\4\ On
April 28, 2011, the Department initiated a later-developed merchandise
anti-circumvention inquiry.\5\
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\2\ The Laminated Woven Sacks Committee and its individual
members, Coating Excellence International, LLC and Polytex Fibers
Corporation, (collectively, ``Petitioners'').
\3\ See Petitioners' Requests for Circumvention Inquiries dated
January 21, 2011 and February 4, 2011.
\4\ See Petitioners' Partial Withdrawal of Request For
Determination of Circumvention (Printed Ink Colors) dated March 25,
2011.
\5\ See Laminated Woven Sacks From the People's Republic of
China: Initiation of Anti-Circumvention Inquiry, 76 FR 23791 (April
28, 2011) (``Initiation Notice'').
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On May 3, July 18, and September 2, 2011, the Department issued
various questionnaires to interested parties. On July 15, 2011, the
Department held a meeting with Petitioners to discuss the anti-
circumvention inquiry.
Scope of the Orders
The merchandise covered by the orders 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; \6\ 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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\6\ ``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 this order is dispositive.
Scope of the Anti-Circumvention Inquiry
The merchandise subject to the anti-circumvention inquiry is
laminated
[[Page 72162]]
woven sacks produced with two ink colors printed in register and a
screening process (``screening-process sacks''). Petitioners allege
that Chinese producers of screening-process sacks have adapted the
screening process to create graphics that appear to have three or more
distinct colors visible, although they are produced using only two inks
and a screen. Petitioners contend that such graphics would normally be
printed using three inks printed in register at three different print
stations, which would then make them subject merchandise. However, by
adapting the screening process, Petitioners state that Chinese
producers of screening-process sacks are able to produce similar
graphics while only using two inks, thus making merchandise that is out
of scope and not subject to antidumping and countervailing duties.
The screening process at issue, as described by interested parties,
only uses two ink colors printed in register at two different print
stations. However, the artwork, by use of a screen, allows for
different shades of a single color to appear on the bag. Thus, when
printed, the screening-process sacks appear to have been printed with
more than two colored inks because more than two distinct colors are
visible on the finished product. As an example of the screening-process
sacks, the Department placed on the record of both proceedings five
laminated woven sacks imported by Shapiro: Two individual Manna Pro
Horse Feed sacks, two individual Red Head Deer Corn sacks, and one
Manna Pro Calf-Manna sack.\7\
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\7\ See Memo to the File from Jamie Blair-Walker regarding Anti-
circumvention Inquiry of Laminated Woven Sacks from the People's
Republic of China on the subject of Meeting with Counsel for the
Laminated Woven Sacks Committee and its individual members, Coating
Excellence International, LLC and Polytex Fibers Corporation, dated
July 15, 2011.
---------------------------------------------------------------------------
Negative Preliminary Determination of Circumvention
For the reasons described below, we preliminarily determine that
the screening-process sacks are not later-developed merchandise because
they were commercially available at the time of the initiation of the
less-than-fair-value (``LTFV'') investigation on laminated woven sacks
from the PRC. Therefore, we also preliminarily determine that the
screening-process sacks are not circumventing the Orders within the
meaning of section 781(d) of the Act.
Applicable Statute
Section 781(d)(1) of the Act provides that the Department may find
circumvention of an antidumping or countervailing duty order when
merchandise is developed after an investigation is initiated (``later-
developed merchandise''). In conducting later-developed merchandise
anti-circumvention inquiries, under section 781(d)(1) of the Act, the
Department first determines whether the merchandise under consideration
is ``later-developed.'' \8\ To do so, the Department examines whether
the merchandise at issue was commercially available at the time of the
initiation of the LTFV investigation.\9\ We define commercial
availability as ``present in the commercial market or fully developed,
i.e., tested and ready for commercial production, but not yet in the
commercial market.'' \10\ In other words, the Department normally
considers: (1) Whether it was possible, at all, to manufacture the
product in question; and (2) if the technology existed, whether the
product was available in the market.\11\
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\8\ See Later-Developed Merchandise Anticircumvention Inquiry of
the Antidumping Duty Order on Petroleum Wax Candles from the
People's Republic of China: Affirmative Final Determination of
Circumvention of the Antidumping Duty Order, 71 FR 59075 (October 6,
2006) (``Candles Anticircumvention Final'') and accompanying Issues
and Decision Memorandum at Comment 4; see also Erasable Programmable
Read Only Memories from Japan; Final Scope Ruling, 57 FR 11599
(April 6, 1992) (``EPROMs from Japan''); Electrolytic Manganese
Dioxide from Japan; Final Scope Ruling, 57 FR 395 (January 6,
1992)(``EMD from Japan''); Portable Electronic Typewriters from
Japan, 55 FR 47358 (November 13, 1990).
\9\ See Candles Anticircumvention Final, 71 FR at 59077 and
Comment 4, affirmed by Target Corp. v. United States, 626 F. Supp.
2d 1285 (CIT 2009), and Target Corp. v. United States, 609 F.3d
1352, 1358-1360 (Fed. Cir. 2010) (``Target Corp. III'') (holding
that Commerce's interpretation of later-developed as turning on
whether the merchandise was commercially available at the time of
the investigation is reasonable).
\10\ See Target Corp. III, 609 F.3d at 1358; see also Candles
Anti-circumvention Final at Comment 4.
\11\ See Anticircumvention Inquiry of the Antidumping Duty Order
on Petroleum Wax Candles from the People's Republic of China:
Affirmative Preliminary Determination of Circumvention of the
Antidumping Duty Order, 71 FR 32033, 32038 (June 2, 2006), unchanged
in Candles Anticircumvention Final; see also EPROMs from Japan, 57
FR at 11602-3 (examining whether the technology to develop the new
product existed at the time of the original investigation);
Television Receiving Sets, Monochrome and Color, from Japan: Final
Scope Ruling, 56 FR 66841 (December 26, 1991) (noting that LCD TV
technology did not exist at the time the original product
descriptions were developed).
---------------------------------------------------------------------------
If the Department determines that such merchandise was not
commercially available at the time of the initiation of the LTFV
investigation, and is thus later-developed, the Department will
consider whether the later-developed merchandise is covered by the
order by evaluating whether the general physical characteristics of the
merchandise under consideration are the same as subject merchandise
covered by the order,\12\ whether the expectations of the ultimate
purchasers of the merchandise under consideration are no different than
the expectations of the ultimate purchasers of subject merchandise,\13\
whether the ultimate use of the subject merchandise and the merchandise
under consideration are the same,\14\ whether the channels of trade of
both products are the same,\15\ and whether there are any differences
in the advertisement and display of both products.\16\ The Department,
after taking into account any advice provided by the United States
International Trade Commission (``ITC''), under section 781(e) of the
Act, may include such imported merchandise within the scope of an order
at any time an order is in effect.
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\12\ See section 781(d)(1)(A) of the Act.
\13\ See section 781(d)(1)(B) of the Act.
\14\ See section 781(d)(1)(C) of the Act.
\15\ See section 781(d)(1)(D) of the Act.
\16\ See section 781(d)(1)(E) of the Act.
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Commercial Availability Analysis
In determining the commercial availability of the screening-process
sacks at issue in this inquiry, the Department first examined whether
it was possible to produce the merchandise. The Department then
examined if there was evidence of the screening-process sacks being
commercially available in the market prior to the initiation of the
LTFV investigation.
As noted by the ITC, the developing nature of the industry at the
time of the LTFV investigation could have had tempered the demand for
screening-process sacks.\17\ Therefore, the Department examined whether
the technology needed to produce screening-process sacks existed prior
to the LTFV investigation as part of these preliminary results. Based
on the record evidence, the Department finds that the technology for
producing screening-process sacks was available prior to the LTFV
investigation. From 2005-2007, all interested parties providing
information and comments for this record purchased the technology to
use a screening process in production of laminated woven sacks,
although the number of inks that were printed on the laminated woven
sacks varied for different products (i.e., included the use of only two
inks as well as the use of
[[Page 72163]]
three or more).\18\ Furthermore, all parties agree that the screening
technology used on laminated woven sacks was not new at the time of the
initiation of the LTFV investigation.\19\
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\17\ See Laminated Woven Sacks from China, Investigation Nos.
701-TA-450 and 731-TA-1122 (Preliminary), ITC Publication 3942
(August 2007) (``ITC Preliminary Determination'') at 31.
\18\ See Commercial Packaging's Supplemental Questionnaire
Response dated September 16, 2011 at 2; see also Response of the
Laminated Woven Sacks Committee to the Department's Questionnaire of
September 2, 2011 dated September 16, 2011 at 4; see also Shapiro's
Supplemental Questionnaire Response dated September 16, 2011 at 2.
\19\ See Commercial Packaging's Supplemental Questionnaire
Response dated September 16, 2011 at 3; see also Petitioners'
Questionnaire Response dated May 18, 2011 at 12; see also Shapiro's
Supplemental Questionnaire Response dated September 16, 2011 at 2.
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With regard to whether the screening-process sacks were available
in the market at the time of the LTFV investigation, in response to the
initiation of this anti-circumvention inquiry, Shapiro submitted
evidence of at least one sale destined for the United States of the
screening-process sacks. Specifically, Shapiro provided an invoice,
packing list, bill-of-lading, purchase order, and approved screen
artwork associated with the 2005 sale of the Manna Pro Horse Feed
Sack.\20\ The purchase order references the use of reverse printing
with two inks: Red PMS 186 and Blue PMS 072.\21\ The corresponding
artwork, signed and approved for production on February 15, 2005, in
conjunction with the related paperwork discussed above demonstrates the
use of a screen in production.\22\ Shapiro's supplier's use of the
screening process in combination with two inks in production of
laminated woven sacks beginning in 2005 was also confirmed in an
affidavit from the Assistant Vice-President of Purchasing at Manna Pro,
the customer that coordinates the design of, and buys, the Manna Pro
Horse Feed Sack from Shapiro.\23\ Shapiro also stated that it sold
147,842.50 lbs. of the Manna Pro Horse Feed Sack prior to the date of
initiation of the LTFV investigation.\24\ Although Shapiro states that
it permanently changed the design of the art work to accommodate the
use of only two inks and a screening process with respect to the
specific sacks on this record after the publication of the preliminary
determination in the LTFV investigation, Shapiro demonstrated that it
used two inks and a screening process for some of the designs at least
occasionally prior to the initiation of the LTFV investigation.\25\
Finally, as demonstrated by an affidavit supplied by Commercial
Packaging, the screening process has been used to produce graphics on
laminated woven sacks prior to the LTFV investigation.\26\ Therefore,
the above information on the record demonstrates that sacks produced
with a screening process and two inks were commercially available prior
to the LTFV investigation.
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\20\ See Shapiro's Comments on Initiation dated May 19, 2011 at
Exhibit 1.
\21\ See Id.
\22\ See Id. and at Exhibit 2.
\23\ See Id. at Exhibit 3.
\24\ See Id. at 2.
\25\ See Shapiro's Supplemental Questionnaire Response dated
July 28, 2011 at 1.
\26\ See Commercial Packaging's Comments on Petitioners'
Submission Dated May 17, 2011 dated June 2, 2011 at 9 and Exhibit 2.
---------------------------------------------------------------------------
Finally, parties provided affidavits on the record stating that
using only two inks and a screening process reduces the cost of
production.\27\ Although Petitioners contend that, despite the use of
only two print stands and fewer inks, the development of the artwork
and the time needed to readjust the machinery could possibly increase
the production costs of screening-process sacks versus subject
merchandise, the Department finds that if the customer seeks a simpler
graphic, the use of only two inks and a screening process is a viable
option to produce a less complex and possibly more affordable
image.\28\
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\27\ See Shapiro's Comments on Initiation dated May 19, 2011 at
Exhibit 3.
\28\ See Commercial Packaging's Comments on Petitioners'
Submission Dated May 17, 2011 dated June 2, 2011 at Exhibit 2.
---------------------------------------------------------------------------
As demonstrated above, the screening technology existed prior to
the LTFV investigation and had been applied to laminated woven sacks
since 2005 (including with the use of only two inks). Thus, the
Department finds that it was possible to produce screening-process
sacks prior to the LTFV investigation and concludes that the screening-
process sacks were commercially available, i.e., tested and ready for
commercial production prior to the LTFV investigation.
Summary of Analysis
After analyzing the above factors, the Department has made a
preliminary determination that the screening-process sacks are not
later-developed merchandise.\29\ The agreement of all parties that the
technology was available prior to the initiation of the LTFV
investigation coupled with the fact that Shapiro demonstrated the sale
of screening-process sacks to the United States has led to the
Department's preliminary determination that the screening-process sacks
were commercially available prior to the initiation of the LTFV
investigation and are therefore not later-developed merchandise.
Furthermore, because the Department has preliminarily determined that
the screening-process sacks are not later-developed merchandise, the
Department does not need to consider the criteria in section 781(d) of
the Act to determine if the screening-process sacks are subject
merchandise.\30\ Therefore, we preliminarily determine that, because
the sacks are not later-developed merchandise, they do not circumvent
the Orders.
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\29\ See Candles Anticircumvention Final, 71 FR at 59075 at
Comment 4; see also EPROMs from Japan; EMD from Japan; Portable
Electronic Typewriters from Japan, 55 FR 47358 (November 13, 1990).
\30\ See Electroytic Manganese Dioxide from Japan; Preliminary
Scope Ruling, 56 FR 56977 (Nov 7, 1991) (``if a product is developed
before an antidumping case is initiated, the later-developed product
provision is clearly inapplicable'') unchanged in final EMD from
Japan.
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Public Comment
Interested parties may submit case briefs and/or written comments
no later than 30 days after the date of publication of these
preliminary results of review.\31\ Rebuttal briefs and rebuttals to
written comments, limited to issues raised in such briefs or comments
may be filed no later than five days after the deadline for filing case
briefs.\32\ 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.\33\ Case briefs and rebuttal briefs must be submitted on
both proceedings.
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\31\ See 19 CFR 351.309(c)(1)(ii).
\32\ See 19 CFR 351.309(d).
\33\ See 19 CFR 351.309(c) and (d).
---------------------------------------------------------------------------
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 after the
date of publication of this notice, pursuant to 19 CFR 351.310.
Requests should contain the party's name, address, and telephone
number, the number of participants, and a list of the issues to be
discussed. At the hearing, each party may make an affirmative
presentation only on issues raised in that party's case brief and may
make rebuttal presentations only on arguments included in that party's
rebuttal brief. If a hearing is requested, we will notify those parties
that requested a hearing of a hearing date and time.
Final Determination
The final determination with respect to this anti-circumvention
inquiry will be issued no later than February 16, 2012, including the
results of the
[[Page 72164]]
Department's analysis of any written comments. This preliminary
negative circumvention determination is published in accordance with
section 781(d) of the Act and 19 CFR 351.225.
Dated: November 15, 2011.
Paul Piquado,
Assistant Secretary for Import Administration.
[FR Doc. 2011-30164 Filed 11-21-11; 8:45 am]
BILLING CODE 3510-DS-P
