Affirmative Preliminary Determination of Circumvention of the Antidumping Duty Order on Folding Metal Tables and Chairs from the People's Republic of China, 63684-63686 [E8-25558]
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63684
Federal Register / Vol. 73, No. 208 / Monday, October 27, 2008 / Notices
From Mexico: Final Results of
Antidumping Duty Administrative
Review, 66 FR 21311 (April 30, 2001).
The cash deposit will be altered, if
warranted, pursuant only to the final
results of this review.
This notice of initiation is in
accordance with section 751(b)(1) of the
Act, 19 CFR 351.216(b) and (d), and 19
CFR 351.221(b)(1).
Dated: October 20, 2008.
Stephen J. Claeys,
Deputy Assistant Secretary for Import
Administration.
[FR Doc. E8–25553 Filed 10–24–08; 8:45 am]
BILLING CODE 3510–DS–S
DEPARTMENT OF COMMERCE
International Trade Administration
A–570–868
Affirmative Preliminary Determination
of Circumvention of the Antidumping
Duty Order on Folding Metal Tables
and Chairs from the People’s Republic
of China
Import Administration,
International Trade Administration,
Department of Commerce.
ACTION: Notice of Preliminary
Determination of Circumvention of
Antidumping Duty Order
AGENCY:
SUMMARY: We preliminarily determine
that imports from the People’s Republic
of China (‘‘PRC’’) of folding metal tables
with legs connected by cross–bars, so
that the legs fold in sets, and otherwise
meeting the description of in–scope
merchandise, are within the class or
kind of merchandise subject to the order
on folding metal tables and chairs
(‘‘FMTCs’’) from the PRC.
EFFECTIVE DATE: October 27, 2008.
FOR FURTHER INFORMATION CONTACT:
Charles Riggle, Import Administration,
International Trade Administration,
U.S. Department of Commerce, 14th
Street and Constitution Avenue, NW,
Washington, DC, 20230; telephone:
(202) 482–0650.
SUPPLEMENTARY INFORMATION:
mstockstill on PROD1PC66 with NOTICES
Background
On October 31, 2005, Meco requested
that the Department of Commerce
(‘‘Department’’) determine whether
folding metal tables with cross–bars are
circumventing the order. On June 1,
2006, the Department initiated a formal
anti–circumvention inquiry relating to
minor alterations with respect to folding
metal tables and chairs. On November 6,
2006, the Department issued a
questionnaire to all producers in the
VerDate Aug<31>2005
17:13 Oct 24, 2008
Jkt 217001
PRC on the scope service list. On
December 21, 2006, Cosco Home and
Office Products (‘‘Cosco’’), a U.S.
importer of subject merchandise, and
PRC producers Feili Group (Fujian) Co.,
Ltd. and Feili Furniture Development
Limited Quanzhou City (collectively
‘‘Feili’’), New–Tec Integration (Xiamen)
Co., Ltd. (‘‘New–Tec’’), Dongguan
Shichang Metals Factory Co. Ltd.
(‘‘Shichang’’), and Lifetime Products
(Xiamen), Inc. (‘‘Lifetime’’), submitted
responses to the Department’s
questionnaire. On January 12, 2007,
Lifetime, Meco and Cosco submitted
comments on the questionnaire
responses.
On February 2, 2007, Meco submitted
rebuttals to Cosco’s comments on the
questionnaire responses. On May 25,
2007 and June 1, 2007, the Department
verified the information in Feili’s and
New–Tec’s questionnaire responses,
respectively. On August 13, 2007, the
Department issued verification reports
for Feili (‘‘Feili Verification Report’’)
and New–Tec (‘‘New–Tec Verification
Report’’).
Scope of the Order
The products covered by this order
consist of assembled and unassembled
folding tables and folding chairs made
primarily or exclusively from steel or
other metal, as described below:
1) Assembled and unassembled
folding tables made primarily or
exclusively from steel or other metal
(folding metal tables). Folding metal
tables include square, round,
rectangular, and any other shapes with
legs affixed with rivets, welds, or any
other type of fastener, and which are
made most commonly, but not
exclusively, with a hardboard top
covered with vinyl or fabric. Folding
metal tables have legs that mechanically
fold independently of one another, and
not as a set. The subject merchandise is
commonly, but not exclusively, packed
singly, in multiple packs of the same
item, or in five piece sets consisting of
four chairs and one table. Specifically
excluded from the scope of the order
regarding folding metal tables are the
following:
Lawn furniture;
Trays commonly referred to as ‘‘TV
trays;‘‘
Side tables;
Child–sized tables;
Portable counter sets consisting of
rectangular tables 36″ high and
matching stools; and,
Banquet tables. A banquet table is a
rectangular table with a plastic or
laminated wood table top
approximately 28″ to 36″ wide by
48″ to 96″ long and with a set of
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Fmt 4703
Sfmt 4703
folding legs at each end of the table.
One set of legs is composed of two
individual legs that are affixed
together by one or more cross–
braces using welds or fastening
hardware. In contrast, folding metal
tables have legs that mechanically
fold independently of one another,
and not as a set.
2) Assembled and unassembled
folding chairs made primarily or
exclusively from steel or other metal
(folding metal chairs). Folding metal
chairs include chairs with one or more
cross–braces, regardless of shape or size,
affixed to the front and/or rear legs with
rivets, welds or any other type of
fastener. Folding metal chairs include:
those that are made solely of steel or
other metal; those that have a back pad,
a seat pad, or both a back pad and a seat
pad; and those that have seats or backs
made of plastic or other materials. The
subject merchandise is commonly, but
not exclusively, packed singly, in
multiple packs of the same item, or in
five piece sets consisting of four chairs
and one table. Specifically excluded
from the scope of the order regarding
folding metal chairs are the following:
Folding metal chairs with a wooden
back or seat, or both;
Lawn furniture;
Stools;
Chairs with arms; and
Child–sized chairs.
The subject merchandise is currently
classifiable under subheadings
9401.71.0010, 9401.71.0030,
9401.79.0045, 9401.79.0050,
9403.20.015, 9403.20.0030,
9403.70.8010, 9403.70.8020, and
9403.70.8030 of the Harmonized Tariff
Schedule of the United States
(‘‘HTSUS’’). Although the HTSUS
subheadings are provided for
convenience and customs purposes, the
Department’s written description of the
merchandise is dispositive.
Based on a request by RPA
International Pty., Ltd. and RPS, LLC
(collectively, ‘‘RPA’’), the Department
ruled on January 13, 2003, that RPA’s
poly–fold metal folding chairs are
within the scope of the order because
they are identical in all material
respects to the merchandise described
in the petition, the initial investigation,
and the determinations of the Secretary.
On May 5, 2003, in response to a
request by Staples, the Office Superstore
Inc. (‘‘Staples’’), the Department issued
a scope ruling that the chair component
of Staples’ ‘‘Complete Office–To-Go,’’ a
folding chair with a tubular steel frame
and a seat and back of plastic, with
measurements of: height: 32.5 inches;
width: 18.5 inches; and depth: 21.5
inches, is covered by the scope of the
E:\FR\FM\27OCN1.SGM
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Federal Register / Vol. 73, No. 208 / Monday, October 27, 2008 / Notices
order because it is identical in all
material respects to the scope
description in the order, but that the
table component, with measurements of:
width (table top): 43 inches; depth (table
top): 27.375 inches; and height: 34.875
inches, has legs that fold as a unit and
meets the requirements for an
exemption from the scope of the order.
On September 7, 2004, the
Department found that table styles 4600
and 4606 produced by Lifetime Plastic
Products Ltd. are within the scope of the
order because these products have all of
the components that constitute a folding
metal table as described in the scope.
On July 13, 2005, the Department
issued a scope ruling determining that
‘‘butterfly’’ chairs are not within the
scope of the antidumping duty order
because they do not meet the physical
description of merchandise covered by
the scope of the order because they do
not have cross braces affixed to the front
and/or rear legs, and the seat and back
is one piece of cloth that is not affixed
to the frame with screws, rivets, welds,
or any other type of fastener.
On July 13, 2005, the Department
issued a scope ruling determining that
folding metal chairs imported by
Korhani of America Inc. are within the
scope of the antidumping duty order
because the imported chair has a
wooden seat which is padded with foam
and covered with fabric or polyvinyl
chloride, attached to the tubular steel
seat frame with screws, and has cross
braces affixed to its legs.
On May 1, 2006, the Department
issued a scope ruling determining that
‘‘moon chairs’’ are not included within
the scope of the antidumping duty order
because moon chairs have different
physical characteristics, different uses,
and are advertised differently that chairs
covered by the scope of the order.
On October 4, 2007, the Department
issued a scope ruling determining that
International E–Z Up Inc.’s (‘‘E–Z Up’’)
Instant Work Bench is not included
within the scope of the antidumping
duty order because its legs and weight
do not match the description of the
folding metal tables in the scope of the
order.
On April 18, 2008, the Department
issued a scope ruling determining that
the VIKA Twofold 2–in–1 Workbench/
Scaffold (‘‘Twofold Workbench/
Scaffold’’) imported by Ignite USA, LLC
from the PRC is not included within the
scope of the antidumping duty order
because its rotating leg mechanism
differs from the folding metal tables
subject to the order, and its weight is
twice as much as the expected
maximum weight for folding metal
tables within the scope of the order.
VerDate Aug<31>2005
17:13 Oct 24, 2008
Jkt 217001
Legal Framework
Section 781(c) of the Tariff Act of
1930 (‘‘the Act’’), dealing with minor
alterations of merchandise, states that:
(1) In general. The class or kind of
merchandise subject to– (A) an
investigation under this title, (B) an
antidumping duty order issued
under section 736, (C) a finding
issued under the Antidumping Act,
1921, or (D) a countervailing duty
order issued under section 706 or
section 303, shall include articles
altered in form or appearance in
minor respects (including raw
agricultural products that have
undergone minor processing),
whether or not included in the
same tariff classification. (2)
Exception. Paragraph (1) shall not
apply with respect to altered
merchandise if the administering
authority determines that it would
be unnecessary to consider the
altered merchandise within the
scope of the investigation, order, or
finding.
Section 351.225(i) of the Department’s
regulations states that under section
781(c) of the Act, the Secretary may
include within the scope of an
antidumping or countervailing duty
order articles altered in form or
appearance in minor respects.
Criteria for Analysis
While the statute is silent regarding
what factors to consider in determining
whether alterations are properly
considered ‘‘minor,’’ the legislative
history of this provision indicates that
there are certain factors that should be
considered before reaching an anti–
circumvention determination. Previous
anti–circumvention cases1 have relied
on the factors listed in the Senate
Finance Committee report on the
Omnibus Trade and Competitiveness
Act of 1988 (which amended the Tariff
Act of 1930 to include the anti–
circumvention provisions contained in
section 781), which states:
[i]n applying this provision, the
Commerce Department should
apply practical measurements
regarding minor alterations, so that
circumvention can be dealt with
effectively, even where such
alterations to an article technically
transform it into a differently
1 See, e.g., Preliminary Determination of
Circumvention of Antidumping Order; Cut-toLength Carbon Steel Plate from Canada, 65 FR
64926, 64929 (October 31, 2000) (unchanged in
final results, 66 FR 7617, 7618 (January 24, 2001))
(‘‘Canadian Plate’’); see also Final Results of AntiCircumvention Review of Antidumping Order:
Corrosion-Resistant Carbon Steel Flat Products
From Japan, 68 FR 33676, 33679 (June 5, 2003).
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Fmt 4703
Sfmt 4703
63685
designated article. The Commerce
Department should consider such
criteria as the overall physical
characteristics of the merchandise,
the expectations of the ultimate
users, the use of the merchandise,
the channels of marketing and the
cost of any modification relative to
the total value of the imported
products. Omnibus Trade Act of
1987, Report of the Senate Finance
Committee, S. Rep. No. 71, 100th
Cong., 1st Sess., at 100 (1987).
In the case of an allegation of a
‘‘minor alteration’’ claim under section
781(c) of the Act, it is the Department’s
practice to look at the five factors listed
in the Senate Finance Committee report
to determine if circumvention exists in
a particular case.2 Each anti–
circumvention review is highly
dependent on the facts on the record,
and must be analyzed in light of those
specific facts. Thus, in anti–
circumvention cases we have
historically analyzed several additional
criteria to determine if circumvention of
the order is taking place.3
Analysis
We organized the evidence and
argument we received in the
questionnaire responses, in the
comments on those questionnaire
responses, and at the verifications into
the following categories:
A. Whether Tables with Cross–Bars
Were Expressly Excluded from the
Scope;
B. Senate Report Criteria; and
C. Other Case–Specific Criteria.
Based on our review of the record
evidence and our analysis of the
comments received, the Department
determines that imports from the PRC of
folding metal tables with legs connected
by cross–bars, so that the legs fold in
sets, and otherwise meet the description
of in–scope merchandise, are within the
class or kind of merchandise subject to
the order on FMTCs from the PRC. For
a complete discussion of the
Department’s analysis, see the
Preliminary Analysis Memorandum for
the Minor Alterations Anti–
Circumvention Inquiry of the
Antidumping Duty Order on Folding
Metal Tables and Chairs from the
People’s Republic of China
(‘‘Preliminary Analysis Memorandum’’),
dated concurrently with this notice.
As explained in the Preliminary
Analysis Memorandum, we
preliminarily determine that the folding
metal tables with cross–bars at issue in
this case are not expressly excluded
2 See,
3 See
E:\FR\FM\27OCN1.SGM
e.g., Canadian Plate, 65 FR at 64929.
id, 65 FR at 64930-31.
27OCN1
63686
Federal Register / Vol. 73, No. 208 / Monday, October 27, 2008 / Notices
mstockstill on PROD1PC66 with NOTICES
from the order. Also, regarding the
Senate Report criteria, we preliminarily
find that folding metal tables with legs
connected by cross–bars have the same
physical characteristics as the folding
metal tables in the scope of the FMTCs
order and the ITC Final Report except
for the presence of cross–bars located
near the table top. There are no
significant differences in the
expectations of the ultimate users, uses
of the merchandise, and channels of
marketing between folding metal tables
with and without cross–bars.
Furthermore, respondents conceded that
the cost of adding cross–bars to tables in
the course of production is negligible.
With respect to other case–specific
criteria, we preliminarily find that since
the original investigation, respondents
have shifted the majority of their
production for U.S. customers away
from folding metal tables without cross–
bars to folding metal tables with cross–
bars. The timing of this shift further
indicates circumvention of the order by
making a minor alteration.
Although parties claim that the cross–
bar increases the table’s strength, there
is no documentation supporting that
claim. The fact that the bars are
positioned near the top of the table,
minimizing any potential benefit from
their addition, weighs against finding
that the cross–bars were added simply
to strengthen the table. Moreover, these
tables are not advertised as having
cross–bars, nor are any claims made in
the marketing materials that they are
stronger or that they have no pinch
points. Taken as a whole, this evidence
leads to our determination that folding
metal tables with legs with cross–bars
are being produced and imported in
circumvention of the antidumping duty
order.
As a result of our inquiry, we
preliminarily determine that imports
from the PRC of folding metal tables
with legs connected by cross–bars, so
that the legs fold in sets, and otherwise
meeting the description of in–scope
merchandise, are within the class or
kind of merchandise subject to the order
on FMTCs from the PRC. See Section
781(c) of the Act.
Suspension of Liquidation
In accordance with section
351.225(l)(2) of the Department’s
regulations, for folding metal tables
meeting the description of the folding
metal tables described in the scope of
the FMTCs order except that they have
cross–bars connecting the legs, so that
the legs fold in sets, we are directing
U.S. Customs and Border Protection
(‘‘CBP’’) to suspend liquidation of
merchandise entered, or withdrawn
VerDate Aug<31>2005
17:13 Oct 24, 2008
Jkt 217001
from warehouse, for consumption on or
after June 1, 2006, the date of the
initiation of this inquiry. We will also
instruct CBP to require a cash deposit of
estimated duties at the applicable rates
for each unliquidated entry of the
product entered, or withdrawn from
warehouse, for consumption on or after
June 1, 2006, the date of initiation of
this inquiry, in accordance with section
351.225(l)(2).
Public Comment
Interested parties are invited to
comment on the preliminary results and
may submit case briefs and/or written
comments within 20 days of the
publication of this notice. See 19 CFR
351.225(f)(1)(iii). Interested parties may
file rebuttal briefs and rebuttals to
written comments, limited to issues
raised in such briefs or comments, no
later than 10 days after the date on
which the case briefs are due. See 19
CFR 351.225(f)(1)(iii). Interested parties
may request a hearing within 20 days of
the publication of this notice. Interested
parties will be notified by the
Department of the location and time of
any hearing, if one is requested.
This preliminary determination of
circumvention is in accordance with
section 781(c) of the Act and 19 CFR
351.225.
Dated: October 20, 2008.
David M. Spooner,
Assistant Secretary for Import
Administration.
{FR Doc. E8–25558 Filed 10–24–08; 8:45 am}
BILLING CODE 3510–DS–S
DEPARTMENT OF COMMERCE
International Trade Administration
A–201–836
Initiation of Antidumping Duty
Changed Circumstances Review:
Light–Walled Rectangular Pipe and
Tube from Mexico
Import Administration,
International Trade Administration,
Department of Commerce.
SUMMARY: In response to a request from
´
Ternium Mexico, S.A. de C.V.
(‘‘Ternium Mexico’’), and pursuant to
section 751(b) of the Tariff Act of 1930,
as amended (‘‘the Act’’) and 19 CFR
351.216 and 351.221(c)(3), the
Department is initiating a changed
circumstances review of the
antidumping duty order on light–walled
rectangular pipe and tube (‘‘LWRPT’’)
from Mexico. This review will
determine whether Ternium Mexico is
AGENCY:
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Frm 00014
Fmt 4703
Sfmt 4703
the successor–in-interest to Hylsa, S.A.
de C.V. (‘‘Hylsa’’).
EFFECTIVE DATE: October 27, 2008.
FOR FURTHER INFORMATION CONTACT: John
Drury or Angelica Mendoza, AD/CVD
Operations, Office 7, Import
Administration, International Trade
Administration, U.S. Department of
Commerce, 14th Street and Constitution
Avenue, NW, Room 7866, Washington,
DC 20230; telephone: (202) 482–0195 or
(202) 482–3019, respectively.
Background
The Department published the
antidumping duty order on LWRPT
from Mexico on August 5, 2008. See
Light–Walled Rectangular Pipe and
Tube from Mexico, the People’s
Republic of China, and the Republic of
Korea: Antidumping Duty Orders; Light–
Walled Rectangular Pipe and Tube from
the Republic of Korea: Notice of
Amended Final Determination of Sales
at Less Than Fair Value, 73 FR 45403
(August 5, 2008).
On September 3, 2008, Ternium
Mexico filed a request for a changed
circumstances review of the
antidumping duty order on LWRPT
from Mexico, claiming that Hylsa, a
Mexican producer of LWRPT, has
changed its name to Ternium Mexico.
Ternium Mexico requested that the
Department determine whether it is the
successor–in-interest to Hylsa, in
accordance with section 751(b) of the
Act, and 19 CFR 351.216. In addition,
Ternium Mexico submitted
documentation in support of its claim.
In response to Ternium Mexico’s
request, the Department is initiating a
changed circumstances review of this
order.
Scope of the Order
The merchandise that is covered by
this order are certain welded carbon
quality light walled steel pipe and tube,
of rectangular (including square) cross
section, having a wall thickness of less
than 4 mm.
The term carbon quality steel includes
both carbon steel and alloy steel which
contains only small amounts of alloying
elements. Specifically, the term carbon
quality includes products in which
none of the elements listed below
exceeds the quantity by weight
respectively indicated: 1.80 percent of
manganese, or 2.25 percent of silicon, or
1.00 percent of copper, or 0.50 percent
of aluminum, or 1.25 percent of
chromium, or 0.30 percent of cobalt, or
0.40 percent of lead, or 1.25 percent of
nickel, or 0.30 percent of tungsten, or
0.10 percent of molybdenum, or 0.10
percent of niobium, or 0.15 percent
vanadium, or 0.15 percent of zirconium.
E:\FR\FM\27OCN1.SGM
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]]>Agencies
[Federal Register Volume 73, Number 208 (Monday, October 27, 2008)]
[Notices]
[Pages 63684-63686]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-25558]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
A-570-868
Affirmative Preliminary Determination of Circumvention of the
Antidumping Duty Order on Folding Metal Tables and Chairs from the
People's Republic of China
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Notice of Preliminary Determination of Circumvention of
Antidumping Duty Order
-----------------------------------------------------------------------
SUMMARY: We preliminarily determine that imports from the People's
Republic of China (``PRC'') of folding metal tables with legs connected
by cross-bars, so that the legs fold in sets, and otherwise meeting the
description of in-scope merchandise, are within the class or kind of
merchandise subject to the order on folding metal tables and chairs
(``FMTCs'') from the PRC.
EFFECTIVE DATE: October 27, 2008.
FOR FURTHER INFORMATION CONTACT: Charles Riggle, Import Administration,
International Trade Administration, U.S. Department of Commerce, 14th
Street and Constitution Avenue, NW, Washington, DC, 20230; telephone:
(202) 482-0650.
SUPPLEMENTARY INFORMATION:
Background
On October 31, 2005, Meco requested that the Department of Commerce
(``Department'') determine whether folding metal tables with cross-bars
are circumventing the order. On June 1, 2006, the Department initiated
a formal anti-circumvention inquiry relating to minor alterations with
respect to folding metal tables and chairs. On November 6, 2006, the
Department issued a questionnaire to all producers in the PRC on the
scope service list. On December 21, 2006, Cosco Home and Office
Products (``Cosco''), a U.S. importer of subject merchandise, and PRC
producers Feili Group (Fujian) Co., Ltd. and Feili Furniture
Development Limited Quanzhou City (collectively ``Feili''), New-Tec
Integration (Xiamen) Co., Ltd. (``New-Tec''), Dongguan Shichang Metals
Factory Co. Ltd. (``Shichang''), and Lifetime Products (Xiamen), Inc.
(``Lifetime''), submitted responses to the Department's questionnaire.
On January 12, 2007, Lifetime, Meco and Cosco submitted comments on the
questionnaire responses.
On February 2, 2007, Meco submitted rebuttals to Cosco's comments
on the questionnaire responses. On May 25, 2007 and June 1, 2007, the
Department verified the information in Feili's and New-Tec's
questionnaire responses, respectively. On August 13, 2007, the
Department issued verification reports for Feili (``Feili Verification
Report'') and New-Tec (``New-Tec Verification Report'').
Scope of the Order
The products covered by this order consist of assembled and
unassembled folding tables and folding chairs made primarily or
exclusively from steel or other metal, as described below:
1) Assembled and unassembled folding tables made primarily or
exclusively from steel or other metal (folding metal tables). Folding
metal tables include square, round, rectangular, and any other shapes
with legs affixed with rivets, welds, or any other type of fastener,
and which are made most commonly, but not exclusively, with a hardboard
top covered with vinyl or fabric. Folding metal tables have legs that
mechanically fold independently of one another, and not as a set. The
subject merchandise is commonly, but not exclusively, packed singly, in
multiple packs of the same item, or in five piece sets consisting of
four chairs and one table. Specifically excluded from the scope of the
order regarding folding metal tables are the following:
Lawn furniture;
Trays commonly referred to as ``TV trays;``
Side tables;
Child-sized tables;
Portable counter sets consisting of rectangular tables
36 high and matching stools; and,
Banquet tables. A banquet table is a rectangular table with a
plastic or laminated wood table top approximately 28 to
36 wide by 48 to 96 long and with a
set of folding legs at each end of the table. One set of legs is
composed of two individual legs that are affixed together by one or
more cross-braces using welds or fastening hardware. In contrast,
folding metal tables have legs that mechanically fold independently of
one another, and not as a set.
2) Assembled and unassembled folding chairs made primarily or
exclusively from steel or other metal (folding metal chairs). Folding
metal chairs include chairs with one or more cross-braces, regardless
of shape or size, affixed to the front and/or rear legs with rivets,
welds or any other type of fastener. Folding metal chairs include:
those that are made solely of steel or other metal; those that have a
back pad, a seat pad, or both a back pad and a seat pad; and those that
have seats or backs made of plastic or other materials. The subject
merchandise is commonly, but not exclusively, packed singly, in
multiple packs of the same item, or in five piece sets consisting of
four chairs and one table. Specifically excluded from the scope of the
order regarding folding metal chairs are the following:
Folding metal chairs with a wooden back or seat, or both;
Lawn furniture;
Stools;
Chairs with arms; and
Child-sized chairs.
The subject merchandise is currently classifiable under subheadings
9401.71.0010, 9401.71.0030, 9401.79.0045, 9401.79.0050, 9403.20.015,
9403.20.0030, 9403.70.8010, 9403.70.8020, and 9403.70.8030 of the
Harmonized Tariff Schedule of the United States (``HTSUS''). Although
the HTSUS subheadings are provided for convenience and customs
purposes, the Department's written description of the merchandise is
dispositive.
Based on a request by RPA International Pty., Ltd. and RPS, LLC
(collectively, ``RPA''), the Department ruled on January 13, 2003, that
RPA's poly-fold metal folding chairs are within the scope of the order
because they are identical in all material respects to the merchandise
described in the petition, the initial investigation, and the
determinations of the Secretary.
On May 5, 2003, in response to a request by Staples, the Office
Superstore Inc. (``Staples''), the Department issued a scope ruling
that the chair component of Staples' ``Complete Office-To-Go,'' a
folding chair with a tubular steel frame and a seat and back of
plastic, with measurements of: height: 32.5 inches; width: 18.5 inches;
and depth: 21.5 inches, is covered by the scope of the
[[Page 63685]]
order because it is identical in all material respects to the scope
description in the order, but that the table component, with
measurements of: width (table top): 43 inches; depth (table top):
27.375 inches; and height: 34.875 inches, has legs that fold as a unit
and meets the requirements for an exemption from the scope of the
order.
On September 7, 2004, the Department found that table styles 4600
and 4606 produced by Lifetime Plastic Products Ltd. are within the
scope of the order because these products have all of the components
that constitute a folding metal table as described in the scope.
On July 13, 2005, the Department issued a scope ruling determining
that ``butterfly'' chairs are not within the scope of the antidumping
duty order because they do not meet the physical description of
merchandise covered by the scope of the order because they do not have
cross braces affixed to the front and/or rear legs, and the seat and
back is one piece of cloth that is not affixed to the frame with
screws, rivets, welds, or any other type of fastener.
On July 13, 2005, the Department issued a scope ruling determining
that folding metal chairs imported by Korhani of America Inc. are
within the scope of the antidumping duty order because the imported
chair has a wooden seat which is padded with foam and covered with
fabric or polyvinyl chloride, attached to the tubular steel seat frame
with screws, and has cross braces affixed to its legs.
On May 1, 2006, the Department issued a scope ruling determining
that ``moon chairs'' are not included within the scope of the
antidumping duty order because moon chairs have different physical
characteristics, different uses, and are advertised differently that
chairs covered by the scope of the order.
On October 4, 2007, the Department issued a scope ruling
determining that International E-Z Up Inc.'s (``E-Z Up'') Instant Work
Bench is not included within the scope of the antidumping duty order
because its legs and weight do not match the description of the folding
metal tables in the scope of the order.
On April 18, 2008, the Department issued a scope ruling determining
that the VIKA Twofold 2-in-1 Workbench/Scaffold (``Twofold Workbench/
Scaffold'') imported by Ignite USA, LLC from the PRC is not included
within the scope of the antidumping duty order because its rotating leg
mechanism differs from the folding metal tables subject to the order,
and its weight is twice as much as the expected maximum weight for
folding metal tables within the scope of the order.
Legal Framework
Section 781(c) of the Tariff Act of 1930 (``the Act''), dealing
with minor alterations of merchandise, states that:
(1) In general. The class or kind of merchandise subject to- (A) an
investigation under this title, (B) an antidumping duty order issued
under section 736, (C) a finding issued under the Antidumping Act,
1921, or (D) a countervailing duty order issued under section 706 or
section 303, shall include articles altered in form or appearance in
minor respects (including raw agricultural products that have undergone
minor processing), whether or not included in the same tariff
classification. (2) Exception. Paragraph (1) shall not apply with
respect to altered merchandise if the administering authority
determines that it would be unnecessary to consider the altered
merchandise within the scope of the investigation, order, or finding.
Section 351.225(i) of the Department's regulations states that
under section 781(c) of the Act, the Secretary may include within the
scope of an antidumping or countervailing duty order articles altered
in form or appearance in minor respects.
Criteria for Analysis
While the statute is silent regarding what factors to consider in
determining whether alterations are properly considered ``minor,'' the
legislative history of this provision indicates that there are certain
factors that should be considered before reaching an anti-circumvention
determination. Previous anti-circumvention cases\1\ have relied on the
factors listed in the Senate Finance Committee report on the Omnibus
Trade and Competitiveness Act of 1988 (which amended the Tariff Act of
1930 to include the anti-circumvention provisions contained in section
781), which states:
---------------------------------------------------------------------------
\1\ See, e.g., Preliminary Determination of Circumvention of
Antidumping Order; Cut-to-Length Carbon Steel Plate from Canada, 65
FR 64926, 64929 (October 31, 2000) (unchanged in final results, 66
FR 7617, 7618 (January 24, 2001)) (``Canadian Plate''); see also
Final Results of Anti-Circumvention Review of Antidumping Order:
Corrosion-Resistant Carbon Steel Flat Products From Japan, 68 FR
33676, 33679 (June 5, 2003).
---------------------------------------------------------------------------
[lsqb]i[rsqb]n applying this provision, the Commerce Department
should apply practical measurements regarding minor alterations, so
that circumvention can be dealt with effectively, even where such
alterations to an article technically transform it into a differently
designated article. The Commerce Department should consider such
criteria as the overall physical characteristics of the merchandise,
the expectations of the ultimate users, the use of the merchandise, the
channels of marketing and the cost of any modification relative to the
total value of the imported products. Omnibus Trade Act of 1987, Report
of the Senate Finance Committee, S. Rep. No. 71, 100th Cong., 1st
Sess., at 100 (1987).
In the case of an allegation of a ``minor alteration'' claim under
section 781(c) of the Act, it is the Department's practice to look at
the five factors listed in the Senate Finance Committee report to
determine if circumvention exists in a particular case.\2\ Each anti-
circumvention review is highly dependent on the facts on the record,
and must be analyzed in light of those specific facts. Thus, in anti-
circumvention cases we have historically analyzed several additional
criteria to determine if circumvention of the order is taking place.\3\
---------------------------------------------------------------------------
\2\ See, e.g., Canadian Plate, 65 FR at 64929.
\3\ See id, 65 FR at 64930-31.
---------------------------------------------------------------------------
Analysis
We organized the evidence and argument we received in the
questionnaire responses, in the comments on those questionnaire
responses, and at the verifications into the following categories:
A. Whether Tables with Cross-Bars Were Expressly Excluded from the
Scope;
B. Senate Report Criteria; and
C. Other Case-Specific Criteria.
Based on our review of the record evidence and our analysis of the
comments received, the Department determines that imports from the PRC
of folding metal tables with legs connected by cross-bars, so that the
legs fold in sets, and otherwise meet the description of in-scope
merchandise, are within the class or kind of merchandise subject to the
order on FMTCs from the PRC. For a complete discussion of the
Department's analysis, see the Preliminary Analysis Memorandum for the
Minor Alterations Anti-Circumvention Inquiry of the Antidumping Duty
Order on Folding Metal Tables and Chairs from the People's Republic of
China (``Preliminary Analysis Memorandum''), dated concurrently with
this notice.
As explained in the Preliminary Analysis Memorandum, we
preliminarily determine that the folding metal tables with cross-bars
at issue in this case are not expressly excluded
[[Page 63686]]
from the order. Also, regarding the Senate Report criteria, we
preliminarily find that folding metal tables with legs connected by
cross-bars have the same physical characteristics as the folding metal
tables in the scope of the FMTCs order and the ITC Final Report except
for the presence of cross-bars located near the table top. There are no
significant differences in the expectations of the ultimate users, uses
of the merchandise, and channels of marketing between folding metal
tables with and without cross-bars. Furthermore, respondents conceded
that the cost of adding cross-bars to tables in the course of
production is negligible.
With respect to other case-specific criteria, we preliminarily find
that since the original investigation, respondents have shifted the
majority of their production for U.S. customers away from folding metal
tables without cross-bars to folding metal tables with cross-bars. The
timing of this shift further indicates circumvention of the order by
making a minor alteration.
Although parties claim that the cross-bar increases the table's
strength, there is no documentation supporting that claim. The fact
that the bars are positioned near the top of the table, minimizing any
potential benefit from their addition, weighs against finding that the
cross-bars were added simply to strengthen the table. Moreover, these
tables are not advertised as having cross-bars, nor are any claims made
in the marketing materials that they are stronger or that they have no
pinch points. Taken as a whole, this evidence leads to our
determination that folding metal tables with legs with cross-bars are
being produced and imported in circumvention of the antidumping duty
order.
As a result of our inquiry, we preliminarily determine that imports
from the PRC of folding metal tables with legs connected by cross-bars,
so that the legs fold in sets, and otherwise meeting the description of
in-scope merchandise, are within the class or kind of merchandise
subject to the order on FMTCs from the PRC. See Section 781(c) of the
Act.
Suspension of Liquidation
In accordance with section 351.225(l)(2) of the Department's
regulations, for folding metal tables meeting the description of the
folding metal tables described in the scope of the FMTCs order except
that they have cross-bars connecting the legs, so that the legs fold in
sets, we are directing U.S. Customs and Border Protection (``CBP'') to
suspend liquidation of merchandise entered, or withdrawn from
warehouse, for consumption on or after June 1, 2006, the date of the
initiation of this inquiry. We will also instruct CBP to require a cash
deposit of estimated duties at the applicable rates for each
unliquidated entry of the product entered, or withdrawn from warehouse,
for consumption on or after June 1, 2006, the date of initiation of
this inquiry, in accordance with section 351.225(l)(2).
Public Comment
Interested parties are invited to comment on the preliminary
results and may submit case briefs and/or written comments within 20
days of the publication of this notice. See 19 CFR 351.225(f)(1)(iii).
Interested parties may file rebuttal briefs and rebuttals to written
comments, limited to issues raised in such briefs or comments, no later
than 10 days after the date on which the case briefs are due. See 19
CFR 351.225(f)(1)(iii). Interested parties may request a hearing within
20 days of the publication of this notice. Interested parties will be
notified by the Department of the location and time of any hearing, if
one is requested.
This preliminary determination of circumvention is in accordance
with section 781(c) of the Act and 19 CFR 351.225.
Dated: October 20, 2008.
David M. Spooner,
Assistant Secretary for Import Administration.
{FR Doc. E8-25558 Filed 10-24-08; 8:45 am{time}
BILLING CODE 3510-DS-S
