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Notice

Notice of Amended Final Determination in Accordance With Court Decision: Antidumping Duty Investigation of Polyethylene Terephthalate Film, Sheet, and Strip from India

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Information about this document as published in the Federal Register.

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AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On May 12, 2005, the United States Court of Appeals for the Federal Circuit (CAFC) affirmed the decision of the Court of International Trade (CIT) to sustain the final remand determination of the Department of Commerce (the Department) in the antidumping duty (AD) investigation of polyethylene terephthalate film, sheet, and strip (PET film) from India. See, Dupont Teijin Films USA, LP, et al, v. United States and Polyplex Corp. Ltd., Slip Op. 04-1548, (May 12, 2005), and the Department's Final Results of Redetermination Pursuant to Court Remand in Dupont Teijin Films USA, LP, et al, v. United States and Polyplex Corp. Ltd., Consol. Court No. 02-00463. As there is now a final and conclusive court decision in this case, the Department is amending the final determination of sales at less than fair value.

EFFECTIVE DATE:

September 1, 2005.

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FOR FURTHER INFORMATION CONTACT:

Drew Jackson or Howard Smith at (202) 482-4406 or (202) 482-5193, respectively; AD/CVD Operations, Office 4, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230.

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SUPPLEMENTARY INFORMATION:

Background

On May 16, 2002, the Department published in the Federal Register the Notice of Final Determination of Sales at Less Than Fair Value: Polyethylene Terephthalate Film, Sheet, and Strip from India, 67 Fed. Reg. 34899 (May 16, 2002) (Final Determination), covering Start Printed Page 52076the period April 1, 2000, through March 31, 2001.[1] In that determination, the Department calculated a dumping margin of 10.34 percent for Polyplex Corporation Limited (Polyplex); however, it excluded Polyplex from the AD order on PET film from India because its AD cash deposit rate was zero percent. The Department calculated the zero percent AD cash deposit rate by reducing the dumping margin of 10.34 percent by the 18.66 percent countervailing duty (CVD) rate on export subsidies that was established in the companion CVD investigation. See, Issues and Decision Memorandum accompanying the Final Determination at Comment 2. The petitioners filed a motion for judgment upon the agency record contesting the Final Determination, claiming that the Department should not have excluded Polyplex from the AD order based on a zero cash deposit rate when Polyplex's dumping margin is greater than de minimis. The Court of International Trade (CIT) held that the Department's exclusion of Polyplex from the order was in error, noting that the Department cannot exclude an exporter from an order because its cash deposit rate is zero. See, Dupont Teijin Films USA, LP, et al, v. United States and Polyplex Corp. Ltd., 273 F. Supp. 2d 1347, 1352 (CIT July 9, 2003). In remanding the case to the Department, the CIT stated that the Department must calculate Polyplex's dumping margin after considering the applicability of 19 U.S.C. § 1677a2 and must find Polyplex's merchandise to be subject to the AD order on PET film from India if the Department continues to calculate a dumping margin for the company of 10.34 percent.

On August 11, 2003, the Department issued its Final Results of Redetermination Pursuant to Court Remand in which it explained that countervailing duties are imposed upon the issuance of a CVD order, and that, at the time the Department issued its Final Determination, the order in the companion CVD investigation had not yet been issued. Thus, the Department argued, Polyplex's sales were not subject to a CVD order, and the decision not to increase U.S. price by the amount of the countervailing duty on export subsidies that was established in the companion CVD investigation was consistent with 19 U.S.C. § 1677a. Because Polyplex's dumping margin was 10.34 percent, the Department determined, consistent with the finding of the CIT decision, that Polyplex is subject to the AD order on PET film from India. In Dupont Teijin Films USA, LP, et al, v. United States and Polyplex Corp. Ltd., 297 F. Supp. 2d 1367 (Dupont Teijin II), the CIT sustained the Department's determination in part, but remanded the case in part, instructing the Department to address certain concerns regarding the application of its new interpretation of “imposed.”

On March 3, 2004, the Department issued its second Final Results of Redetermination Pursuant to Court Remand (Second Remand Determination) in which it addressed the CIT's concerns. On June 18, 2004, the CIT sustained the Department's Second Remand Determination in its entirety. See, Dupont Teijin Films USA, LP, et al, v. United States and Polyplex Corp. Ltd., No. 02-00463, 2004 WL 1368838 (CIT June 18, 2004)(Dupont Teijin III). Polyplex timely appealed this decision to the CAFC.

On May 12, 2005, the CAFC affirmed the decision of the CIT in Dupont Teijin III, thereby sustaining the Department's Second Remand Determination and its determination that Polyplex is subject to the AD duty order on PET film from India.

As the litigation in this case has concluded, the Department is amending the Final Determination. Because the Department calculated a weighted-average dumping margin of 10.34 percent for Polyplex, Polyplex is subject to the AD order on PET film from India. However, as discussed above, for cash deposit purposes, the Department is subtracting from Polyplex's cash deposit rate the CVD rate on export subsidies that was established in the companion affirmative CVD determination (i.e., 18.66 percent). After this adjustment, the cash deposit rate for Polyplex is zero.

This notice is issued and published in accordance with sections 735(d) and 777(i) of the Tariff Act of 1930, as amended.

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Dated: August 26, 2005.

Joseph A. Spetrini,

Acting Assistant Secretary for Import Administration.

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Footnotes

1.  This determination was subsequently amended to reflect the correction of a ministerial error. See, Notice of Amended Final Antidumping Duty Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Polyethylene Terephthalate Film, Sheet, and Strip from India, 67 Fed. Reg. 44175 (July 1, 2002).

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2.  This section of the statute requires U.S. price to be increased by the amount of any countervailing duty imposed to offset export subsidies. In the Final Determination, the Department accounted for the countervailing duty on export subsidies by adjusting the AD cash deposit rate, rather than U.S. price.

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[FR Doc. E5-4799 Filed 8-31-05; 8:45 am]

BILLING CODE 3510-DS-S