Partial Rescission of the Administrative Review and Intent to Rescind the Administrative Review: Polyethylene Retail Carrier Bags from Malaysia
Federal Register: May 6, 2008 (Volume 73, Number 88)
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF COMMERCE
International Trade Administration
Polyethylene Retail Carrier Bags from Malaysia: Notice of Partial
Rescission of the Administrative Review and Intent to Rescind the
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: In response to requests by interested parties, the Department of Commerce (Department) initiated an administrative review of the antidumping duty order on polyethylene retail carrier bags (PRCBs) from
Malaysia with respect to three producers/exporters of the subject merchandise. The period of review (POR) is August 1, 2006, through July 31, 2007.
The Department is rescinding this administrative review in part with respect to one company. In addition, the Department has preliminarily determined that there were no entries of subject merchandise from the two remaining companies during the POR to review and, therefore, intends to rescind the administrative review in its entirety. Interested parties are invited to comment on this intent to rescind the administrative review.
EFFECTIVE DATE: May 6, 2008.
FOR FURTHER INFORMATION: Lyn Johnson or Richard Rimlinger, AD/CVD
Operations, Office 5, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482- 5287 and (202) 482-4477, respectively.
On August 2, 2007, the Department published a notice of opportunity to request an administrative review of PRCBs from Malaysia for the period August 1, 2006, through July 31, 2007. See Antidumping or
Countervailing Duty Order, Finding, or Suspended Investigation;
Opportunity to Request Administrative Review, 72 FR 42383 (August 2, 2007). On August 31, 2007, interested parties requested an administrative review in accordance with 19 CFR 351.213(b)(1). The review requests were as follows: (1) The Polyethylene Retail Carrier
Bag Committee and its individual members, Hilex Poly Co., LLC and
Superbag Corporation (Petitioners) requested a review of Euro Plastics
Malaysia Sdn. Bhd. and its affiliate Eplastics Procurement Center Sdn.
Bhd. (Euro Plastics); (2) Zhin Hin Plastic Manufacturer Sdn. Bhd. (also known as Chin Hin Plastic Manufacture) (Zhin Hin) requested a review of itself; (3) King Pac Industrial Co., Ltd. (King Pac) requested a review of itself. On September 25, 2007, the Department initiated administrative reviews of Euro Plastics, Zhin Hin, and King Pac. See
Initiation of Antidumping and Countervailing Duty Administrative
Reviews and Requests for Revocation in Part, 72 FR 54428 (September 25, 2007).
Scope of the Order
The merchandise subject to this antidumping duty order is PRCBs which may be referred to as t-shirt sacks, merchandise bags, grocery bags, or checkout bags. The subject merchandise is defined as non- sealable sacks and bags with handles (including drawstrings), without zippers or integral extruded closures, with or without gussets, with or without printing, of polyethylene film having a thickness no greater than 0.035 inch (0.889 mm) and no less than 0.00035 inch (0.00889 mm), and with no length or width shorter than 6 inches (15.24 cm) or longer than 40 inches (101.6 cm). The depth of the bag may be shorter than 6 inches (15.24 cm) but not longer than 40 inches (101.6 cm).
PRCBs are typically provided without any consumer packaging and free of charge by retail establishments, e.g., grocery, drug, convenience, department, specialty retail, discount stores, and restaurants, to their customers to package and carry their purchased products. The scope of the order excludes (1) polyethylene bags that are not printed with logos or store names and that are closeable with drawstrings made of polyethylene film and (2) polyethylene bags that are packed in consumer packaging with printing that refers to specific end-uses other than packaging and carrying merchandise from retail establishments, e.g., garbage bags, lawn bags, trash-can liners.
Imports of the subject merchandise are currently classifiable under statistical category 3923.21.0085 of the Harmonized Tariff Schedule of the United States (HTSUS). Furthermore, although the HTSUS subheading is provided for convenience and customs purposes, the written description of the scope of this order is dispositive.
Rescission in Part
On October 4, 2007, we received a timely withdrawal of the request for review of King Pac. King Pac informed us that its request was intended for the order on PRCBs from Thailand instead of Malaysia. In accordance with 19 CFR 351.213(d)(1), the Department will rescind an administrative review ``if a party that requested the review withdraws the request within 90 days of the date of publication of notice of initiation of the requested review.'' Therefore, because King Pac withdrew its request within the 90-day time limit and there were no other requests to review King Pac, we are rescinding the review in part with respect to King Pac.
Intent to Rescind
On October 22, 2007, in response to the Department's quantity and value questionnaire, Euro Plastics reported that it did not ship to the
United States during the POR. We examined U.S. Customs and Border
Protection (CBP) data and did not find entries of subject merchandise from Euro Plastics during the POR. See the April 25, 2008, memorandum to The File entitled ``Polyethylene Retail Carrier Bags from Malaysia -
Customs Data for Entries during the period August 1, 2006, through July 31, 2007.''
On October 22, 2007, in response to the Department's quantity and value questionnaire, Zhin Hin reported that it had shipments to the
United States during the POR. Accordingly, we issued an antidumping duty questionnaire to Zhin Hin on November 26, 2007. On November 29, 2007, Zhin Hin provided CBP documentation to support its claim that it had shipments to the United States during the POR. Upon reviewing the
CBP documentation provided in Zhin Hin's November 29, 2007, letter and
January 9, 2008, questionnaire response, we found that Zhin Hin relied on the ``import date,'' which fell within the POR, as the relevant date to support its request for review. It is the Department's practice, however, to consider the ``entry date'' as the determinative date for purposes of whether an entry falls within a POR. In this case, we found that the CBP documentation which Zhin Hin submitted also showed an
``entry summary date'' which fell outside of the POR. We examined additional CBP data and tied the entry from the CBP documentation Zhin
Hin submitted to the additional CBP data by the entry number. The additional CBP data showed that this entry had an ``entry date'' which occurred outside the POR. Based on this information, we concluded that there were no entries of subject merchandise from Zhin Hin during the
Section 751(a)(2) of the Tariff Act of 1930, as amended (the Act), instructs the Department that, when conducting an administrative review, it is to determine the dumping margin for entries during the relevant period. Further, according to 19 CFR 351.213(d)(3), the
Department may rescind an administrative review in whole or only with respect to a particular exporter or producer if it concludes that, during the POR, there were no entries, exports, or sales of the subject merchandise, as the case may be. The Department has interpreted the statutory and regulatory language as requiring ``that there be entries during the period of review upon which to assess antidumping duties.''
See Granular Polytetrafluoroethylene Resin from Japan: Notice of
Rescission of Antidumping Duty Administrative Review, 70 FR 44088
(August 1, 2005). In Allegheny Ludlum Corp. v. United States, 346 F.3d 1368, 1372 (CAFC 2003), the Court of Appeals for the Federal Circuit upheld the Department's practice of rescinding annual reviews when there are no entries of subject merchandise during the POR. See also
Stainless Steel Plate in Coils from Taiwan: Final Rescission of
Antidumping Duty Administrative Review, 68 FR 63067, 63068 (November 7, 2003) (stating that ``the Department's interpretation of its statute and regulations, as affirmed by the Court of Appeals for the Federal
Circuit, supports not conducting an administrative review when the evidence on the record indicates that respondents had no entries of subject merchandise during the POR'').
As explained above, we did not find entries of subject merchandise from Euro Plastics or Zhin Hin during the POR. Because we preliminarily find that Euro Plastics and Zin Hin had no entries of subject merchandise during the POR and these are the only remaining companies in this review, we intend to rescind the administrative review in its entirety. If we continue to find that there were no entries of subject merchandise from these companies after consideration of comments from interested parties, we will rescind the entire administrative review of
PRCBs from Malaysia in accordance with 19 CFR 351.213(d)(3).
Any interested party may request a hearing within 30 days of the publication of this notice in the Federal Register in accordance with 19 CFR 351.310. If a hearing is requested, the Department will notify interested parties of the hearing schedule.
Interested parties are invited to comment on the intent to rescind the administrative review. The Department will consider case briefs filed by interested parties within 30 days after the date of publication of this notice in the Federal Register. Interested parties may file rebuttal briefs, limited to issues raised in the case briefs.
The Department will consider rebuttal briefs filed not later than five days after the time limit for filing case briefs. Parties who submit arguments are requested to submit with each argument a statement of the issue, a brief summary of the argument, and a table of authorities
cited. Further, we request that parties submitting written comments provide the Department with a diskette containing an electronic copy of the public version of such comments. See, generally, 19 CFR 351.309(c) and (d).
This rescission in part and intent to rescind the administrative review are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Dated: April 30, 2008.
Stephen J. Claeys,
Deputy Assistant Secretary for Import Administration.
FR Doc. E8-9992 Filed 5-5-08; 8:45 am
BILLING CODE 3510-DS-S