Folding Metal Tables and Chairs from the People's Republic of China: Preliminary Results of Antidumping Duty Administrative Review, 32118-32125 [E9-15963]
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Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Notices
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Dated: June 29, 2009.
Mark E. Brown,
Chief Financial Officer, Office of Oceanic and
Atmospheric Research, National Oceanic and
Atmospheric Administration.
[FR Doc. E9–15851 Filed 7–6–09; 8:45 am]
BILLING CODE 3510–KD–P
DEPARTMENT OF COMMERCE
International Trade Administration
[A–570–868]
Folding Metal Tables and Chairs from
the People’s Republic of China:
Preliminary Results of Antidumping
Duty Administrative Review
AGENCY: Import Administration,
International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce
(‘‘the Department’’) is conducting an
administrative review of the
antidumping duty order on folding
metal tables and chairs (‘‘FMTCs’’) from
the People’s Republic of China (‘‘PRC’’)
covering the period June 1, 2007,
through May 31, 2008, and one
respondent. We have preliminarily
determined that New–Tec Integration
(Xiamen) Co., Ltd. (‘‘New–Tec’’), did not
make sales in the United States at prices
below normal value (‘‘NV’’) during the
period of review (‘‘POR’’). If these
preliminary results are adopted in our
final results of this review, we will
instruct U.S. Customs and Border
Protection (‘‘CBP’’) to liquidate entries
of merchandise exported by New–Tec,
during the POR without regard to
antidumping duties.
We invite interested parties to
comment on these preliminary results.
We intend to issue the final results no
later than 120 days from the date of
publication of this notice, pursuant to
section 751(a)(3)(A) of the Tariff Act of
1930, as amended (‘‘the Act’’).
EFFECTIVE DATE: July 7, 2009.
FOR FURTHER INFORMATION CONTACT:
Giselle Cubillos or Charles Riggle, AD/
CVD Operations, Office 8, Import
Administration, International Trade
Administration, U.S. Department of
Commerce, 14th Street and Constitution
Avenue, NW, Washington, DC 20230;
telephone: (202) 482–1778 and
(202)482–0650, respectively.
SUPPLEMENTARY INFORMATION:
Background
On June 27, 2002, the Department
published the antidumping duty order
on FMTCs from the PRC. See
Antidumping Duty Order: Folding Metal
Tables and Chairs From the People’s
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Republic of China, 67 FR 43277 (June
27, 2002). On June 9, 2008, the
Department published a notice of
opportunity to request an administrative
review of this order. See Antidumping
or Countervailing Duty Order, Finding,
or Suspended Investigation;
Opportunity to Request Administrative
Review, 73 FR 32557 (June 9, 2008). In
accordance with 19 CFR 351.213(b),
interested parties made the following
requests for review: (1) on June 23,
2008, Meco Corporation (‘‘Meco’’), a
domestic producer of the like product,
requested that the Department conduct
administrative reviews of Feili Group
(Fujian) Co., Ltd., Feili (Fujian) Co.,
Ltd., Feili Furniture Development
Limited Quanzhou City, and Feili
Furniture Development Co., Ltd.
(collectively ‘‘Feili’’), New–Tec
Integration (Xiamen) Co. Ltd. (‘‘New–
Tec’’), and Dongguan Shichang Metals
Factory Co., Ltd. (‘‘Shichang’’), which
are all producers/exporters of subject
merchandise; (2) on June 26, 2008,
Cosco Home & Office Products
(‘‘Cosco’’), a U.S. importer of subject
merchandise, requested that the
Department conduct administrative
reviews of Feili and New–Tec; and, (3)
on June 30, 2008, Feili and New–Tec
requested that the Department conduct
an administrative review of their
respective sales. Feili, in addition,
requested that the Department defer the
initiation of the review for one year in
accordance with 19 CFR 351.213(c).
On July 30, 2008, the Department
published the initiation of the
administrative review of the
antidumping duty order on FMTCs from
the PRC and granted Feili’s request for
deferral of the 2007–2008 review.1 No
parties objected to the deferral of Feili’s
2007–2008 review.
On August 11, 2008, Meco withdrew
its request that the Department conduct
an administrative review of Shichang.
On September 26, 2008, the Department
published the notice of partial
rescission of antidumping
administrative review rescinding the
administrative review of FMTCs with
respect to Shichang.2
The Department issued an
antidumping duty questionnaire to
New–Tec on September 9, 2008. On
October 7, 2008, New–Tec submitted a
Section A questionnaire response
(‘‘AQR’’), and on October 30, 2008,
1 See Initiation of Antidumping and
Countervailing Duty Administrative Reviews,
Request for Revocation in Part, and Deferral of
Administrative Review, 73 FR 44220 (July 30, 2008).
2 See Folding Metal Tables and Chairs from the
People’s Republic of China: Notice of Partial
Rescission of Antidumping Duty Administrative
Review, 73 FR 55813 (September 26, 2008).
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New–Tec submitted Section C and D
questionnaire responses (‘‘CQR’’ and
‘‘DQR,’’ respectively). On December 11,
2008, the Department requested the
Office of Policy to provide a list of
surrogate countries for this review. See
Memorandum to Carole Showers,
Executive Director, Office of Policy,
‘‘Certain Folding Metal Tables and
Chairs from the People’s Republic of
China: Request for Surrogate Country
Selection’’ (December 11, 2008). On
December 22, 2008, the Office of Policy
issued its list of surrogate countries. See
Memorandum from Carole Showers,
Executive Director, Office of Policy,
‘‘Request for a List of Surrogate
Countries for an Administrative Review
of the Antidumping Duty Order on
Certain Folding Metal Tables and Chairs
(‘‘FMTC’’) from the People’s Republic of
China (PRC)’’ (December 22, 2008)
(‘‘Surrogate Country Memorandum’’).
On December 22, 2008, the
Department requested interested parties
to submit surrogate value information
and to provide surrogate country
selection comments. On December 24,
2008, the Department issued a
supplemental questionnaire to New–
Tec. On January 21, 2009, Meco
provided comments on publicly
available information to value the
factors of production (‘‘FOP’’). None of
the interested parties provided
comments on the selection of a
surrogate country. On January 21, 2009,
New–Tec submitted publicly available
information to value the financial ratios
and submitted its supplemental
questionnaire response. On February 3,
2009, the Department issued a
supplemental questionnaire to New–
Tec. On February 25, 2009, New–Tec
submitted a supplemental questionnaire
response. On March 4, 2009, the
Department published a notice in the
Federal Register extending the time
limit for the preliminary results of
review until no later than May 1, 2009.3
On March 20, 2009, the Department
issued a supplemental questionnaire to
New–Tec. On March 30, 2009, Meco
submitted comments on the
supplemental questionnaire response
filed by New–Tec on February 24, 2009.
On April 3, 2009, New–Tec submitted a
supplemental questionnaire response.
On April 23, 2009, the Department
issued a supplemental questionnaire to
New–Tec.
On May 7, 2009 the Department
published a notice in the Federal
Register extending the time limit further
for the preliminary results of review
until June 30, 2009.4 On May 18, 2009,
New–Tec submitted a supplemental
questionnaire response. On May 29,
2009, Meco provided comments on
publicly available information to value
additional FOPs. On June 3, 2009, Meco
submitted comments on the May 18,
2009, supplemental questionnaire
response filed by New–Tec. On June 5,
2009, the Department issued a
supplemental questionnaire to New–
Tec. On June 9, 2009, New–Tec
submitted a supplemental questionnaire
response.
In accordance with 19 CFR
351.301(c)(3)(ii), for the final results in
an antidumping administrative review,
interested parties may submit publicly
available information to value FOPs
within 20 days after the date of
publication of these preliminary results
of review.
3 See Folding Metal Tables and Chairs from the
People’s Republic of China: Notice of Extension of
Time Limit for the Preliminary Results of the
Antidumping Duty Administrative Review, 74 FR
9385 (March 4, 2009).
4 See Folding Metal Tables and Chairs from the
People’s Republic of China: Notice of Extension of
Time Limit for the Preliminary Results of the
Antidumping Duty Administrative Review, 74 FR
21332 (May 7, 2009).
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Period of Review
The POR is June 1, 2007, through May
31, 2008.
Scope of 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.
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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
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measurements of: height: 32.5 inches;
width: 18.5 inches; and depth: 21.5
inches, is covered by the scope of the
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 as 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 than
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
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twice as much as the expected
maximum weight for folding metal
tables within the scope of the order.
On May 6, 2009, the Department
issued a final determination of
circumvention, determining 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 circumventing
the order and are properly considered to
be within the class or kind of
merchandise subject to the order on
FMTCs from the PRC.
On May 22, 2009, the Department
issued a scope ruling determining that
folding metal chairs that have legs that
are not connected with cross–bars are
within the scope of the antidumping
duty order on folding metal tables and
chairs from the PRC.
Non–Market Economy Country Status
No party contested the Department’s
treatment of the PRC as a non–market
economy (‘‘NME’’) country, and the
Department has treated the PRC as an
NME country in all past antidumping
duty investigations and administrative
reviews and continues to do so in this
case. See, e.g., Certain Cased Pencils
from the People’s Republic of China:
Final Results of Antidumping Duty
Administrative Review, 72 FR 27074,
27075 (May 14, 2007) (‘‘Pencils’’). No
interested party in this case has argued
that we should do otherwise.
Designation as an NME country remains
in effect until it is revoked by the
Department. See section 771(18)(C)(i) of
the Act.
Surrogate Country
Section 773(c)(1) of the Act directs the
Department to base NV on the NME
producer’s FOPs, valued in a surrogate
market–economy country or countries
considered to be appropriate by the
Department. In accordance with section
773(c)(4) of the Act, in valuing the
FOPs, the Department shall use, to the
extent possible, the prices or costs of the
FOPs in one or more market–economy
countries that are: (1) at a level of
economic development comparable to
that of the NME country; and (2)
significant producers of comparable
merchandise. The sources of the
surrogate factor values are discussed
under the ‘‘Normal Value’’ section
below. See Memorandum to The File,
‘‘Preliminary Results of the 2007–2008
Administrative Review of Folding Metal
Tables and Chairs from the People’s
Republic of China: Surrogate Value
Memorandum’’ (June 30, 2009)
(‘‘Surrogate Value Memorandum’’).
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The Department determined that
Columbia, India, Indonesia, Peru, the
Philippines and Thailand are countries
comparable to the PRC in terms of
economic development. See Surrogate
Country Memorandum. Once we have
identified the countries that are
economically comparable to the PRC,
we select an appropriate surrogate
country by determining whether an
economically comparable country is a
significant producer of comparable
merchandise and whether the data for
valuing FOPs are both available and
reliable.
The Department has determined that
India is the appropriate surrogate
country for use in this review. The
Department based its decision on the
following facts: (1) India is at a level of
economic development comparable to
that of the PRC; (2) India is a significant
producer of comparable merchandise;
and (3) India provides the best
opportunity to use quality, publicly
available data to value the FOPs. On the
record of this review, we have usable
surrogate financial data from India, and
no party has submitted surrogate
financial data from any other potential
surrogate country. Additionally, the
data submitted by Meco and New–Tec
for our consideration as potential
surrogate values are sourced from India.
Therefore, because India best
represents the experience of producers
of comparable merchandise operating in
a surrogate country, we have selected
India as the surrogate country and,
accordingly, have calculated NV using
Indian prices to value the respondent’s
FOPs, when available and appropriate.
See Surrogate Value Memorandum. We
have obtained and relied upon publicly
available information wherever
possible.
Separate Rates
In proceedings involving NME
countries, the Department has a
rebuttable presumption that all
companies within the country are
subject to government control and, thus,
should be assessed a single antidumping
duty rate. See, e.g., Pencils, 72 FR at
27075. It is the Department’s policy to
assign all exporters of merchandise
subject to review in an NME country
this single rate unless an exporter can
demonstrate that it is sufficiently
independent so as to be entitled to a
separate rate. Id. Exporters can
demonstrate this independence through
the absence of both de jure and de facto
government control over export
activities. The Department analyzes
each entity exporting the subject
merchandise under a test arising from
the Notice of Final Determination of
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Sales at Less Than Fair Value: Sparklers
from the People’s Republic of China, 56
FR 20588, at Comment 1 (May 6, 1991)
(‘‘Sparklers’’), as further developed in
Notice of Final Determination of Sales
at Less Than Fair Value: Silicon Carbide
from the People’s Republic of China, 59
FR 22585, 22587 (May 2, 1994) (‘‘Silicon
Carbide’’). However, if the Department
determines that a company is wholly
foreign–owned or located in a market
economy, then a separate–rate analysis
is not necessary to determine whether it
is independent from government
control.
A. Absence of De Jure Control
The Department considers the
following de jure criteria in determining
whether an individual company may be
granted a separate rate: (1) an absence of
restrictive stipulations associated with
an individual exporter’s business and
export licenses; (2) any legislative
enactments decentralizing control of
companies; and (3) other formal
measures by the government
decentralizing control of companies. See
Sparklers, 56 FR at 20589.
New–Tec has placed documents on
the record to demonstrate the absence of
de jure control including its list of
shareholders, business license, and the
Company Law of the PRC (‘‘Company
Law’’). Other than limiting New–Tec to
activities referenced in the business
license, we found no restrictive
stipulations associated with the license.
In addition, in previous cases the
Department has analyzed the Company
Law and found that it establishes an
absence of de jure control, lacking
record evidence to the contrary.5 We
have no information in this segment of
the proceeding that would cause us to
reconsider this determination.
Therefore, based on the foregoing, we
have preliminarily found an absence of
de jure control for New–Tec.
B. Absence of De Facto Control
Typically the Department considers
four factors in evaluating whether each
respondent is subject to de facto
government control of its export
functions: (1) whether the export prices
are set by or are subject to the approval
of a government agency; (2) whether the
respondent has authority to negotiate
and sign contracts and other
agreements; (3) whether the respondent
has autonomy from the government in
making decisions regarding the
selection of management; and (4)
5 See, e.g., Certain Non-Frozen Apple Juice
Concentrate from the People’s Republic of China:
Final Results, Partial Rescission and Termination of
a Partial Deferral of the 2002-2003 Administrative
Review, 69 FR 65148, 65150 (November 10, 2004).
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14:45 Jul 06, 2009
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whether the respondent retains the
proceeds of its export sales and makes
independent decisions regarding
disposition of profits or financing of
losses.6 The Department has determined
that an analysis of de facto control is
critical in determining whether
respondents are, in fact, subject to a
degree of government control that
would preclude the Department from
assigning separate rates.
With regard to de facto control, New–
Tec reported that: (1) it independently
set prices for sales to the United States
through negotiations with customers
and these prices are not subject to
review by any government organization;
(2) it did not coordinate with other
exporters or producers to set the price
or to determine to which market the
companies will sell subject
merchandise; (3) the PRC Chamber of
Commerce did not coordinate the export
activities of New–Tec; (4) its general
manager has the authority to
contractually bind it to sell subject
merchandise; (5) its board of directors
appoints its general manager; (6) there is
no restriction on its use of export
revenues; (7) its shareholders ultimately
determine the disposition of respective
profits, and New–Tec has not had a loss
in the last two years; and (8) none of
New–Tec’s board members or managers
is a government official. Furthermore,
our analysis of New–Tec’s questionnaire
responses reveals no information
indicating government control of its
export activities. Therefore, based on
the information on the record, we
preliminarily determine that there is an
absence of de facto government control
with respect to New–Tec’s export
functions and that New–Tec has met the
criteria for the application of a separate
rate.
The evidence placed on the record of
this review by New–Tec demonstrates
an absence of de jure and de facto
government control with respect to its
exports of subject merchandise, in
accordance with the criteria identified
in Sparklers, 56 FR at 20589; and
Silicon Carbide, 59 FR at 22587.
Accordingly, we have preliminarily
granted a separate rate to New–Tec.
Date of Sale
19 CFR 351.401(i) states that:
In identifying the date of sale of the
subject merchandise or foreign like
product, the Secretary normally
will use the date of invoice, as
recorded in the exporter or
6 See Silicon Carbide, 59 FR at 22586-87; see also
Notice of Final Determination of Sales at Less Than
Fair Value: Furfuryl Alcohol From the People’s
Republic of China, 60 FR 22544, 22545 (May 8,
1995).
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32121
producer’s records kept in the
ordinary course of business.
However, the Secretary may use a
date other than the date of invoice
if the Secretary is satisfied that a
different date better reflects the date
on which the exporter or producer
establishes the material terms of
sale.
See also Allied Tube and Conduit Corp.
v. United States, 132 F. Supp. 2d 1087,
1090–1092 (CIT 2001) (upholding the
Department’s rebuttable presumption
that invoice date is the appropriate date
of sale). After examining the
questionnaire responses and the sales
documentation placed on the record by
New–Tec, we preliminarily determine
that invoice date is the most appropriate
date of sale for New–Tec. Nothing on
the record rebuts the presumption that
invoice date should be the date of sale.
Normal Value Comparisons
To determine whether sales of FMTCs
to the United States by New–Tec were
made at less than NV, we compared
export price (‘‘EP’’) to NV, as described
in the ‘‘Export Price,’’ and ‘‘Normal
Value’’ sections of this notice, pursuant
to section 771(35) of the Act.
Export Price
Because New–Tec sold subject
merchandise to unaffiliated purchasers
in the United States prior to importation
into the United States or to unaffiliated
resellers outside the United States with
knowledge that the merchandise was
destined for the United States, and use
of a constructed export price
methodology is not otherwise indicated,
we have used EP in accordance with
section 772(a) of the Act.
We calculated EP based on the free–
on-board or delivered price to
unaffiliated purchasers for New–Tec.
From this price, we deducted amounts
for foreign inland freight, international
movement expenses, air freight,
brokerage and handling, and billing
adjustments, as applicable, pursuant to
section 772(c)(2)(A) of the Act.7
The Department valued brokerage and
handling using a simple average of the
brokerage and handling costs that were
reported in public submissions that
were filed in three antidumping duty
cases. Specifically, we averaged the
public brokerage and handling expenses
reported by Navneet Publications (India)
Ltd. in the 2007–2008 administrative
7 See Memorandum to The File, ‘‘Analysis for the
Preliminary Results of the 2007-2008
Administrative Review of Folding Metal Tables and
Chairs from the People’s Republic of China: NewTec Integration (Xiamen) Co. Ltd. (‘‘New-Tec’’)’’
(June 30, 2009) (‘‘New-Tec Preliminary Analysis
Memorandum’’).
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review of certain lined paper products
from India, Essar Steel Limited in the
2006–2007 antidumping duty
administrative review of hot–rolled
carbon steel flat products from India,
and Himalya International Ltd. in the
2005–2006 administrative review of
certain preserved mushrooms from
India. The Department adjusted the
average brokerage and handling rate for
inflation. See Surrogate Value
Memorandum.
To value truck freight, we used the
freight rates published by
www.infobanc.com, ‘‘The Great Indian
Bazaar, Gateway to Overseas Markets.’’
The logistics section of the website
contains inland freight truck rates
between many large Indian cities. The
truck freight rates are for the period
August 2008 through September 2008.
Since these dates are not
contemporaneous with the POR, we
deflated the rates using Indian WPI. See
Surrogate Value Memorandum.
Zero–Priced Transactions
In the final results of the 2003–2004,
2004–2005, 2005–2006 and the 2006–
2007 administrative reviews of FMTCs,
we included New–Tec’s and/or other
respondents’ zero–priced transactions in
the margin calculation because the
record demonstrated that respondents’
provided many pieces of the same
product, indicating that these ‘‘samples’’
did not primarily serve for evaluation or
testing of the merchandise.
Additionally, respondents provided
‘‘samples’’ to the same customers to
whom it was selling the same products
in commercial quantities.8 As a result,
we concluded that these transactions
were not what we consider to be
samples because respondents were not
providing product to entice its U.S.
customers to buy the product.
The U.S. Court of Appeals for the
Federal Circuit (‘‘Federal Circuit’’) has
not required the Department to exclude
zero–priced or de minimis sales from its
analysis but, rather, has defined a sale
as requiring ‘‘both a transfer of
ownership to an unrelated party and
8 See
Folding Metal Tables and Chairs from the
People’s Republic of China; Final Results of
Antidumping Duty Administrative Review, 71 FR
2905 (January 18, 2006), and accompanying Issues
and Decision Memorandum at Comment 4; Folding
Metal Tables and Chairs from the People’s Republic
of China: Final Results of Antidumping Duty
Administrative Review, 71 FR 71509 (December 11,
2006), and accompanying Issues and Decision
Memorandum at Comment 4; and Folding Metal
Tables and Chairs from the People’s Republic of
China: Final Results of Antidumping Duty
Administrative Review, 72 FR 71355 (December 17,
2007), and accompanying Issues and Decision
Memorandum at Comments 10 and 11.
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14:45 Jul 06, 2009
Jkt 217001
consideration.’’9 The Court of
International Trade (‘‘CIT’’) in NSK Ltd.
v. United States stated that it saw ‘‘little
reason in supplying and re–supplying
and yet re–supplying the same product
to the same customer in order to solicit
sales if the supplies are made in
reasonably short periods of time,’’ and
that ‘‘it would be even less logical to
supply a sample to a client that has
made a recent bulk purchase of the very
item being sampled by the client.’’10
Furthermore, the Courts have
consistently ruled that the burden rests
with a respondent to demonstrate that it
received no consideration in return for
its provision of purported samples.11
Moreover, even where the Department
does not ask a respondent for specific
information to demonstrate that a
transaction is a sample, the respondent
has the burden of presenting the
information in the first place to
demonstrate that its transactions qualify
for exclusion.12
An analysis of New–Tec’s Section C
computer sales listing reveals that it
provided zero–priced merchandise to
the same customer to whom it sold the
same products in commercial quantities.
Consequently, based on the facts cited
above, the guidance of past court
decisions, and our previous decisions,
for the preliminary results of this
review, we have not excluded these
zero–priced transactions from the
margin calculation for New–Tec.
Normal Value
Section 773(c)(1) of the Act provides
that, in the case of an NME, the
Department shall determine NV using
an FOP methodology if the merchandise
is exported from an NME and the
information does not permit the
calculation of NV using home–market
prices, third–country prices, or
constructed value under section 773(a)
of the Act.
The Department bases NV on FOPs
because the presence of government
controls on various aspects of these
economies renders price comparisons
and the calculation of production costs
invalid under our normal
9 See NSK Ltd. v. United States, 115 F.3d 965, 975
(Fed. Cir. 1997).
10 See NSK Ltd .v. United States, 217 F. Supp. 2d
1291, 1311-1312 (CIT 2002)., 217 F. Supp. 2d 1291,
1311-1312 (CIT 2002).
11 See, e.g., Zenith Electronics Corp. v. United
States, 988 F.2d 1573, 1583 (Fed. Cir. 1993)
(explaining that the burden of evidentiary
production belongs ‘‘to the party in possession of
the necessary information’’). See also Tianjin
Machinery Import & Export Corp. v. United States,
806 F. Supp. 1008, 1015 (CIT 1992) (‘‘The burden
of creating an adequate record lies with respondents
and not with {the Department}.’’) (citation omitted).
12 See NTN Bearing Corp. of America. v. United
States, 997 F.2d 1453, 1458 (Fed. Cir. 1993).
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methodologies. Therefore, we calculated
NV based on FOPs in accordance with
sections 773(c)(3) and (4) of the Act and
19 CFR 351.408(c). The FOPs include:
(1) hours of labor required; (2) quantities
of raw materials employed; (3) amounts
of energy and other utilities consumed;
and (4) representative capital costs. In
accordance with 19 CFR 351.408(c)(1),
the Department normally uses publicly
available information to value the FOPs.
However, when a producer sources a
meaningful amount of an input from a
market–economy country and pays for it
in market–economy currency, the
Department may value the factor using
the actual price paid for the input.13
Further, the Department disregards
prices it has reason to suspect may be
dumped or subsidized.14
We have reason to believe or suspect
that prices of inputs from Indonesia,
South Korea, and Thailand may have
been subsidized. We have found in
other proceedings that these countries
maintain broadly available, non–
industry-specific export subsidies and,
therefore, it is reasonable to infer that all
exports to all markets from these
countries may be subsidized.15 The
legislative history explains that we need
not conduct a formal investigation to
ensure that such prices are not
subsidized.16 Rather, Congress indicated
that the Department should base its
decision on information that is available
to it at the time it makes its
determination. Therefore, we have not
used prices from these countries in
calculating the Indian import–based
surrogate values. In instances where
respondents source a market economy
input solely from suppliers located in
these countries, we used Indian import–
based surrogate values to value the
input. In addition, we excluded Indian
13See 19 CFR 351.408(c)(1); see also Lasko Metal
Products v. United States, 43 F.3d 1442, 1445-1446
(Fed. Cir. 1994) (affirming the Department’s use of
market-based prices to value certain FOPs).
14 See, e.g., China National Machinery Import &
Export Corp. v. United States, 293 F. Supp. 2d 1334,
1339 (CIT 2003) (aff’d, 104 Fed. Appx. 183 (Fed.
Cir. 2004)), and see Antidumping Duties;
Countervailing Duties; Final Rule, 62 FR 27296,
27366 (May 19, 1997).
15 See, e.g., Frontseating Service Valves from the
People’s Republic of China; Preliminary
Determination of Sales at Less Than Fair Value,
Preliminary Negative Determination of Critical
Circumstances, and Postponement of Final
Determination, 73 FR 62952 (October 22, 2008)
(unchanged in Frontseating Service Valves from the
People’s Republic of China: Final Determination of
Sales at Less Than Fair Value and Final Negative
Determination of Critical Circumstances, 74 FR
10886 (March 13, 2009); and China National
Machinery Import & Export Corporation v. United
States, 293 F. Supp. 2d 1334 (CIT 2003), affirmed
104 Fed. Appx. 183 (Fed. Cir. 2004).
16 See Omnibus Trade and Competitiveness Act
of 1988, Conference Report to Accompanying H.R.
3, H.R. Rep. 100-576 at 590-91 (1988).
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Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Notices
import data from NME countries and
unidentified countries from our
surrogate value calculations.17
Factor Valuations
In accordance with section 773(c) of
the Act, we calculated NV based on the
FOPs reported by New–Tec for the POR.
To calculate NV, we multiplied the
reported per–unit factor quantities by
publicly available Indian surrogate
values (except as noted below). In
selecting the surrogate values, we
considered the quality, specificity, and
contemporaneity of the data. As
appropriate, we adjusted input prices by
including freight costs to render them
delivered prices. Specifically, we added
to Indian import surrogate values a
surrogate freight cost using the shorter
of the reported distance from the
domestic supplier to the factory or the
distance from the nearest seaport to the
factory where appropriate (i.e., where
the sales terms for the market–economy
inputs were not delivered to the
factory). This adjustment is in
accordance with the decision of the
Federal Circuit in Sigma Corp. v. United
States, 117 F. 3d 1401, 1408 (Fed. Cir.
1997). For a detailed description of all
surrogate values used for New–Tec, see
the Surrogate Value Memorandum.
Except as noted below, we valued raw
material inputs using the weighted–
average unit import values derived from
the Monthly Statistics of the Foreign
Trade of India, as published by the
Directorate General of Commercial
Intelligence and Statistics of the
Ministry of Commerce and Industry,
Government of India in the World Trade
Atlas (‘‘WTA’’), available at https://
www.gtis.com/wta.htm. The WTA data
are reported in rupees and are
contemporaneous with the POR. Where
we could not obtain publicly available
information contemporaneous with the
POR with which to value FOPs, we
adjusted the surrogate values using,
where appropriate, the Indian
Wholesale Price Index as published in
the International Financial Statistics of
the International Monetary Fund. We
used the U.S. Consumer Price Index as
published in the Bureau of Labor
Statistics, to adjust the air freight and air
fuel surcharge values as published in
AFMS Transportation Management
Group. See Surrogate Value
Memorandum.
We further adjusted material input
values to account for freight costs
incurred between the supplier and
respondent. We used the freight rates
17 For a detailed description of all surrogate
values used for each respondent, see Surrogate
Value Memorandum.
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published by www.infobanc.com, ‘‘The
Great Indian Bazaar, Gateway to
Overseas Markets.’’ The logistics section
of the website contains inland freight
truck rates between many large Indian
cities. The truck freight rates are for the
period August 2008 through May 2009.
Since these dates are not
contemporaneous with the POR, we
deflated the rates using Indian WPI. See
Surrogate Value Memorandum.
New–Tec made raw materials
purchases from market–economy
suppliers. Therefore, in accordance with
our practice outlined in Antidumping
Methodologies: Market Economy
Inputs,18 where at least 33 percent of an
input was sourced from market–
economy suppliers and purchased in a
market–economy currency, the
Department will use actual weighted–
average purchase prices to value these
inputs.19 Where the quantity of the
input purchased from market–economy
suppliers during the period was below
33 percent of its total volume of
purchases of the input during the
period, the Department will weight–
average the weighted average market–
economy purchase price with an
appropriate surrogate value. See
Antidumping Methodologies: Market
Economy Inputs. For a complete
description of the factor values we used,
see Surrogate Value Memorandum and
New–Tec Preliminary Analysis
Memorandum.
To value liquid petroleum gas, we
used per–kilogram values obtained from
Bharat Petroleum, published June 4,
2009. We made adjustments to account
for inflation and freight costs incurred
between the supplier and New–Tec. See
Surrogate Value Memorandum.
To value electricity, we used price
data for small, medium, and large
industries, as published by the Central
Electricity Authority of the Government
of India in its publication entitled
‘‘Electricity Tariff & Duty and Average
Rates of Electricity Supply in India,’’
dated July 2006. These electricity rates
represent actual country–wide,
publicly–available information on tax–
exclusive electricity rates charged to
industries in India. See Surrogate Value
Memorandum.
To value water, we used the revised
Maharashtra Industrial Development
Corporation (‘‘MIDC’’) water rates
available at https://www.midcindia.com/
water–supply, which we deflated using
Indian WPI. See Surrogate Value
Memorandum.
For direct labor, indirect labor and
packing labor, consistent with 19 CFR
351.408(c)(3), we used the PRC
regression–based wage rate as reported
on Import Administration’s web site.20
Because this regression–based wage rate
does not separate the labor rates into
different skill levels or types of labor,
we have applied the same wage rate to
all skill levels and types of labor
reported by each respondent. See
Surrogate Value Memorandum.
For factory overhead, selling, general,
and administrative expenses (‘‘SG&A’’),
and profit values, both New–Tec and
Meco submitted identical financial
statements to those that were submitted
and considered by the Department for
use as surrogate financial statements in
the preceding administrative review;
none of which is contemporaneous with
the current POR.21 The Department
examined these financial statements in
the preceding administrative review and
found that Maximaa Systems Limited
(‘‘Maximaa’’) produced a greater
proportion of comparable merchandise
than the other companies (Infiniti
Modules PVT Ltd., Godrej & Boyce
Manufacturing Company Limited, and
Tube Investments of India, Ltd.), and
therefore best met the Department’s
criteria for surrogate financial ratios.
Because parties have submitted for the
instant review the same surrogate
financial statements as those from the
prior review, and the record indicates
that Maximaa produced a greater
proportion of comparable merchandise
than other surrogate companies whose
financial statements were placed on the
record, we find that Maximaa continues
to be the best available information with
which to determine factory overhead as
a percentage of the total raw materials,
labor and energy (‘‘ML&E’’) costs; SG&A
as a percentage of ML&E plus overhead
(i.e., cost of manufacture); and the profit
rate as a percentage of the cost of
manufacture plus SG&A. See Surrogate
Value Memorandum for a full
discussion of the calculation of these
ratios.
For packing materials, we used the
per–kilogram values obtained from the
18 See Antidumping Methodologies: Market
Economy Inputs, Expected Non-Market Economy
Wages, Duty Drawback; and Request for Comments,
71 FR 61716, 61717-19 (October 19, 2006)
(‘‘Antidumping Methodologies: Market Economy
Inputs’’).
19 For a detailed description of all actual values
used for market-economy inputs, see New-Tec
Preliminary Analysis Memorandum dated
concurrently with this notice.
20 See Expected Wages of Selected NME Countries
(May 14, 2008) (available at https://ia.ita.doc.gov/
wages). The source of these wage rate data on
Import Administration’s web site is the Yearbook of
Labour Statistics 2005, ILO, (Geneva: 2005), Chapter
5B: Wages in Manufacturing. The years of the
reported wage rates range from 2004 to 2005.
21 See New-Tec’s January 21, 2009, Surrogate
Value Comments at Exhibit 1, and Meco’s January
21, 2009, Surrogate Value Comments at Exhibit 7.
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Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Notices
CFR 351.408(c) is 20 days after the date
of publication of the preliminary results.
In accordance with 19 CFR
351.301(c)(1), if an interested party
submits factual information less than
Currency Conversion
ten days before, on, or after (if the
We made currency conversions into
Department has extended the deadline),
U.S. dollars, in accordance with section the applicable deadline for submission
773A(a) of the Act, based on the
of such factual information, an
exchange rates in effect on the dates of
interested party has ten days to submit
the U.S. sales, as certified by the Federal factual information to rebut, clarify, or
Reserve Bank.
correct the factual information no later
than ten days after such factual
Preliminary Results of Review
information is served on the interested
We preliminarily determine that the
party. However, the Department
following weighted–average dumping
generally will not accept in the rebuttal
margin exists:
submission additional, alternative
surrogate value information not
Manufacturer/Exporter
Margin (Percent)
previously on the record, if the deadline
New–Tec .......................
0.18* for submission of surrogate value
information has passed.22 Furthermore,
* de minimis
the Department generally will not
accept business proprietary information
Disclosure
in either the surrogate value
We will disclose the calculations used submissions or the rebuttals thereto, as
in our analysis to parties to this
the regulation regarding the submission
proceeding within five days of the
of surrogate values allows only for the
publication date of this notice. See 19
submission of publicly available
CFR 351.224(b). Interested parties are
information.
invited to comment on the preliminary
Assessment Rates
results and may submit case briefs and/
or written comments within 30 days of
Upon issuance of the final results, the
the date of publication of this notice.
Department will determine, and CBP
See 19 CFR 351.309(c). Interested
shall assess, antidumping duties on all
parties may file rebuttal briefs and
appropriate entries covered by this
rebuttals to written comments, limited
review. The Department intends to issue
to issues raised in such briefs or
assessment instructions to CBP 15 days
comments, no later than five days after
after the publication date of the final
the date on which the case briefs are
results of this review. In accordance
due. See 19 CFR 351.309(d). The
with 19 CFR 351.212(b)(1), we
calculated exporter/importer (or
Department requests that parties
customer)-specific assessment rates for
submitting written comments provide
the merchandise subject to this review.
an executive summary and a table of
Where the respondent reports reliable
authorities as well as an additional copy
entered values, we calculate importer
of those comments electronically.
(or customer)-specific ad valorem rates
Any interested party may request a
hearing within 30 days of publication of by aggregating the dumping margins
calculated for all U.S. sales to each
this notice. See 19 CFR 351.310(c). If a
importer (or customer) and dividing this
request for a hearing is made, parties
amount by the total entered value of the
will be notified of the time and date for
sales to each importer (or customer). See
the hearing to be held at the U.S.
19 CFR 351.212(b)(1). Where an
Department of Commerce, 14th Street
importer (or customer)-specific ad
and Constitution Avenue, NW,
valorem rate is greater than de minimis,
Washington, DC 20230. See 19 CFR
we will apply the assessment rate to the
351.310(d). The Department will issue
entered value of the importers’/
the final results of this administrative
review, which will include the results of customers’ entries during the POR. See
19 CFR 351.212(b)(1). Where we do not
its analysis of issues raised in any such
have entered values for all U.S. sales,
comments, within 120 days of
publication of these preliminary results, we calculate a per–unit assessment rate
by aggregating the antidumping duties
pursuant to section 751(a)(3)(A) of the
due for all U.S. sales to each importer
Act.
(or customer) and dividing this amount
Deadline for Submission of Publicly
Available Surrogate Value Information
22 See, e.g., Glycine from the People’s Republic of
China: Final Results of Antidumping Duty
In accordance with 19 CFR
Administrative Review and Final Rescission, in
351.301(c)(3), the deadline for
Part, 72 FR 58809 (October 17, 2007), and
submission of publicly available
accompanying Issues and Decision Memorandum at
information to value FOPs under 19
Comment 2.
WTA and made adjustments to account
for freight costs incurred between the
PRC supplier and New–Tec’s plants. See
Surrogate Value Memorandum.
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14:45 Jul 06, 2009
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by the total quantity sold to that
importer (or customer).
To determine whether the duty
assessment rates are de minimis, in
accordance with the requirement set
forth in 19 CFR 351.106(c)(2), we
calculated importer (or customer)specific ad valorem ratios based on the
estimated entered value. Where an
importer (or customer)-specific ad
valorem rate is zero or de minimis, we
will instruct CBP to liquidate
appropriate entries without regard to
antidumping duties. See 19 CFR
351.106(c)(2).
Cash Deposit Requirements
The following cash deposit
requirements will be effective upon
publication of the final results of this
administrative review for all shipments
of the subject merchandise entered, or
withdrawn from warehouse, for
consumption on or after the publication
date, as provided for by section
751(a)(2)(C) of the Act: (1) for New–Tec,
the cash deposit rate will be the
company–specific rate established in
the final results of review (except, if the
rate is zero or de minimis, no cash
deposit will be required); (2) for
previously investigated or reviewed PRC
and non–PRC exporters not listed above
that have separate rates, the cash
deposit rate will continue to be the
exporter–specific rate published for the
most recent period; (3) for all PRC
exporters of subject merchandise that
have not been found to be entitled to a
separate rate, the cash deposit rate will
be the PRC–wide rate of 70.71 percent;
and (4) for all non–PRC exporters of
subject merchandise that have not
received their own rate, the cash deposit
rate will be the rate applicable to the
PRC exporters that supplied that non–
PRC exporter. These deposit
requirements, when imposed, shall
remain in effect until further notice.
Notification to Importers
This notice also serves as a
preliminary reminder to importers of
their responsibility under 19 CFR
351.402(f) to file a certificate regarding
the reimbursement of antidumping
duties prior to liquidation of the
relevant entries during this review
period. Failure to comply with this
requirement could result in the
Secretary’s presumption that
reimbursement of antidumping duties
occurred and the subsequent assessment
of double antidumping duties.
This determination is issued and
published in accordance with sections
751(a)(1) and 777(i)(1) of the Act.
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Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Notices
Dated: June 30, 2009.
John M. Andersen,
Acting Deputy Assistant Secretary for
Antidumping and Countervailing Duty
Operations.
[FR Doc. E9–15963 Filed 7–6–09; 8:45 am]
BILLING CODE 3510–DS–S
DEPARTMENT OF COMMERCE
International Trade Administration
[A–570–905]
Certain Polyester Staple Fiber from the
People’s Republic of China: Notice of
Preliminary Results of the
Antidumping Duty Administrative
Review and Extension of Time Limit for
the Final Results
AGENCY: Import Administration,
International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce
(‘‘Department’’) is conducting the first
administrative review of the
antidumping duty order on certain
polyester staple fiber (‘‘PSF’’) from the
People’s Republic of China (‘‘PRC’’) for
the period of review (‘‘POR’’) December
26, 2006, through May 31, 2008. The
Department has preliminarily
determined that sales have been made
below normal value (‘‘NV’’) by the
respondents. If these preliminary results
are adopted in our final results of this
review, the Department will instruct
U.S. Customs and Border Protection
(‘‘CBP’’) to assess antidumping duties
on all appropriate entries of subject
merchandise during the POR.
Interested parties are invited to
comment on these preliminary results.
The Department intends to issue the
final results no later than 180 days from
the date of publication of this notice,
pursuant to section 751(a)(3)(A) of the
Tariff Act of 1930, as amended (‘‘Act’’).
See ‘‘Extension of the Time Limits for
the Final Results’’ below.
EFFECTIVE DATE: July 7, 2009.
FOR FURTHER INFORMATION CONTACT:
Emeka Chukwudebe or Alexis Polovina
AD/CVD Operations, Office 9, Import
Administration, International Trade
Administration, Department of
Commerce, 14th Street and Constitution
Avenue, NW, Washington, DC 20230;
telephone: (202) 482 0219 or (202) 482
3927 respectively.
SUPPLEMENTARY INFORMATION:
Background
On June 1, 2007, the Department
published in the Federal Register an
antidumping duty order on certain
polyester staple fiber from the PRC. See
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14:45 Jul 06, 2009
Jkt 217001
Notice of Antidumping Duty Order:
Certain Polyester Staple Fiber from the
People’s Republic of China, 72 FR 30545
(June 1, 2007) (‘‘Order’’). On July 30,
2008, the Department published a notice
of initiation of an administrative review
of certain PSF from the PRC covering
the period December 26, 2006, through
May 31, 2008 for 27 companies.1 See
Initiation of Antidumping and
Countervailing Duty Administrative
Reviews, Request for Revocation in Part,
and Deferral of Administrative Review,
73 FR 44220 (July 30, 2008) (‘‘Initiation
Notice’’). On February 19, 2009, the
Department published a notice
extending the time period for issuing
the preliminary results by 120 days to
June 30, 2009. See Certain Polyester
Staple Fiber from the People’s Republic
of China: Extension of Time Limits for
Preliminary Results of the Antidumping
Duty Administrative Review, 74 FR 7660
(February 19, 2009).
Respondent Selection
Section 777A(c)(1) of the Act directs
the Department to calculate individual
dumping margins for each known
exporter or producer of the subject
merchandise. However, section
777A(c)(2) of the Act gives the
Department discretion to limit its
examination to a reasonable number of
exporters or producers if it is not
practicable to examine all exporters or
producers involved in the review.
On August 5, 2008, the Department
released CBP data for entries of the
subject merchandise during the POR
under administrative protective order
(‘‘APO’’) to all interested parties having
an APO as of five days of publication of
the Initiation Notice, inviting comments
regarding the CBP data and respondent
selection. The Department received
comments and rebuttal comments
between August 14, 2008, and August
22, 2008.
1 Those companies are: Far Eastern Industries,
Ltd., (Shanghai) and Far Eastern Polychem
Industries;Ningbo Dafa Chemical Fiber Co., Ltd.;
Cixi Sansheng Chemical Fiber Co., Ltd.; Cixi Santai
Chemical Fiber Co., Ltd.; Cixi Waysun Chemical
Fiber Co., Ltd.; Hangzhou Best Chemical Fibre Co.,
Ltd.; Hangzhou Hanbang Chemical Fibre Co., Ltd.;
Hangzhou Huachuang Co., Ltd.; Hangzhou Sanxin
Paper Co., Ltd.; Hangzhou Taifu Textile Fiber Co.,
Ltd.; Jiaxang Fuda Chemical Fibre Factory; Nantong
Loulai Chemical Fiber Co., Ltd.;Nanyang Textile
Co., Ltd.; Suzhou PolyFiber Co., Ltd.; Xiamen
Xianglu Chemical Fiber Co.; Zhaoqing Tifo New
Fiber Co., Ltd.; Zhejiang Anshun Pettechs Fibre Co.,
Ltd.; Zhejiang Waysun Chemical Fiber Co., Ltd.;
Dragon Max Trading Development; Xiake Color
Spinning Co., Ltd.; Jiangyin Hailun Chemical Fiber
Co., Ltd.; Hyosung Singapore PTE Ltd.; Jiangyin
Changlong Chemical Fiber Co., Ltd.; Ma Ha
Company, Ltd.; Jiangyin Huahong Chemical Fiber
Co., Ltd.; Jiangyin Mighty Chemical Fiber Co., Ltd.;
and Huvis Sichuan.
PO 00000
Frm 00022
Fmt 4703
Sfmt 4703
32125
On October 1, 2008, the Department
sent out a quantity and value (‘‘Q&V’’)
questionnaire to all 27 companies for
which a review was requested because
a significant amount of the volume in
the CBP data was unclear. In the CBP
data, the identity of the largest exporter
could not be publicly identified by any
party, including the Department.
Moreover, it was unclear if companies
with the same CBP module suffix could
be grouped together or whether the CBP
module suffix was properly used by
those companies which were assigned
the CBP module suffix in the
investigation. In addition, parties
requested numerous adjustments to the
CBP data, including but not limited to
grouping of companies, and corrections
to company names. The Department
received Q&V responses between
October 16, 2008, and October 20, 2008,
from 19 of the 27 companies who
received the questionnaire.
On November 7, 2008, the Department
issued its respondent selection
memorandum after assessing its
resources and determining that it could
reasonably examine two exporters
subject to this review. Pursuant to
section 777A(c)(2)(B) of the Act, the
Department selected Ningbo Dafa
Chemical Fiber Co., Ltd. (‘‘Ningbo
Dafa’’) and Cixi Santai Chemical Fiber
Co. (‘‘Santai’’) as mandatory
respondents.2 The Department sent
antidumping duty questionnaires to
Ningbo Dafa and Santai on November
14, 2008.
Ningbo Dafa submitted the Section A
Questionnaire Response on December 5,
2008, the Section C Questionnaire
Response on December 30, 2008, and
the Section D Questionnaire Response
on January 9, 2009. Santai submitted the
Section A Questionnaire Response on
December 12, 2008, and the Sections C
and D Questionnaire Responses on
January 9, 2009.
Petitioners submitted deficiency
comments regarding respondents’
questionnaire responses between
December 2008 and May 2009. The
Department issued supplemental
questionnaires to Ningbo Dafa and
Santai between March 2009 and May
2009 to which both companies
responded.
2 See Memorandum to James Dole, Director, AD/
CVD Operations, Office 9, from Alexis Polovina,
International Trade Compliance Analyst, AD/CVD
Operations, Office 9; First Antidumping Duty
Administrative Review of Certain Polyester Staple
Fiber from the PRC: Selection of Respondents for
Individual Review, dated November 7, 2008
(‘‘Respondent Selection Memo’’).
E:\FR\FM\07JYN1.SGM
07JYN1
Agencies
[Federal Register Volume 74, Number 128 (Tuesday, July 7, 2009)]
[Notices]
[Pages 32118-32125]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-15963]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-868]
Folding Metal Tables and Chairs from the People's Republic of
China: Preliminary Results of Antidumping Duty Administrative Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce (``the Department'') is conducting
an administrative review of the antidumping duty order on folding metal
tables and chairs (``FMTCs'') from the People's Republic of China
(``PRC'') covering the period June 1, 2007, through May 31, 2008, and
one respondent. We have preliminarily determined that New-Tec
Integration (Xiamen) Co., Ltd. (``New-Tec''), did not make sales in the
United States at prices below normal value (``NV'') during the period
of review (``POR''). If these preliminary results are adopted in our
final results of this review, we will instruct U.S. Customs and Border
Protection (``CBP'') to liquidate entries of merchandise exported by
New-Tec, during the POR without regard to antidumping duties.
We invite interested parties to comment on these preliminary
results. We intend to issue the final results no later than 120 days
from the date of publication of this notice, pursuant to section
751(a)(3)(A) of the Tariff Act of 1930, as amended (``the Act'').
EFFECTIVE DATE: July 7, 2009.
FOR FURTHER INFORMATION CONTACT: Giselle Cubillos or Charles Riggle,
AD/CVD Operations, Office 8, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-
1778 and (202)482-0650, respectively.
SUPPLEMENTARY INFORMATION:
Background
On June 27, 2002, the Department published the antidumping duty
order on FMTCs from the PRC. See Antidumping Duty Order: Folding Metal
Tables and Chairs From the People's Republic of China, 67 FR 43277
(June 27, 2002). On June 9, 2008, the Department published a notice of
opportunity to request an administrative review of this order. See
Antidumping or Countervailing Duty Order, Finding, or Suspended
Investigation; Opportunity to Request Administrative Review, 73 FR
32557 (June 9, 2008). In accordance with 19 CFR 351.213(b), interested
parties made the following requests for review: (1) on June 23, 2008,
Meco Corporation (``Meco''), a domestic producer of the like product,
requested that the Department conduct administrative reviews of Feili
Group (Fujian) Co., Ltd., Feili (Fujian) Co., Ltd., Feili Furniture
Development Limited Quanzhou City, and Feili Furniture Development Co.,
Ltd. (collectively ``Feili''), New-Tec Integration (Xiamen) Co. Ltd.
(``New-Tec''), and Dongguan Shichang Metals Factory Co., Ltd.
(``Shichang''), which are all producers/exporters of subject
merchandise; (2) on June 26, 2008, Cosco Home & Office Products
(``Cosco''), a U.S. importer of subject merchandise, requested that the
Department conduct administrative reviews of Feili and New-Tec; and,
(3) on June 30, 2008, Feili and New-Tec requested that the Department
conduct an administrative review of their respective sales. Feili, in
addition, requested that the Department defer the initiation of the
review for one year in accordance with 19 CFR 351.213(c).
On July 30, 2008, the Department published the initiation of the
administrative review of the antidumping duty order on FMTCs from the
PRC and granted Feili's request for deferral of the 2007-2008
review.\1\ No parties objected to the deferral of Feili's 2007-2008
review.
---------------------------------------------------------------------------
\1\ See Initiation of Antidumping and Countervailing Duty
Administrative Reviews, Request for Revocation in Part, and Deferral
of Administrative Review, 73 FR 44220 (July 30, 2008).
---------------------------------------------------------------------------
On August 11, 2008, Meco withdrew its request that the Department
conduct an administrative review of Shichang. On September 26, 2008,
the Department published the notice of partial rescission of
antidumping administrative review rescinding the administrative review
of FMTCs with respect to Shichang.\2\
---------------------------------------------------------------------------
\2\ See Folding Metal Tables and Chairs from the People's
Republic of China: Notice of Partial Rescission of Antidumping Duty
Administrative Review, 73 FR 55813 (September 26, 2008).
---------------------------------------------------------------------------
The Department issued an antidumping duty questionnaire to New-Tec
on September 9, 2008. On October 7, 2008, New-Tec submitted a Section A
questionnaire response (``AQR''), and on October 30, 2008,
[[Page 32119]]
New-Tec submitted Section C and D questionnaire responses (``CQR'' and
``DQR,'' respectively). On December 11, 2008, the Department requested
the Office of Policy to provide a list of surrogate countries for this
review. See Memorandum to Carole Showers, Executive Director, Office of
Policy, ``Certain Folding Metal Tables and Chairs from the People's
Republic of China: Request for Surrogate Country Selection'' (December
11, 2008). On December 22, 2008, the Office of Policy issued its list
of surrogate countries. See Memorandum from Carole Showers, Executive
Director, Office of Policy, ``Request for a List of Surrogate Countries
for an Administrative Review of the Antidumping Duty Order on Certain
Folding Metal Tables and Chairs (``FMTC'') from the People's Republic
of China (PRC)'' (December 22, 2008) (``Surrogate Country
Memorandum'').
On December 22, 2008, the Department requested interested parties
to submit surrogate value information and to provide surrogate country
selection comments. On December 24, 2008, the Department issued a
supplemental questionnaire to New-Tec. On January 21, 2009, Meco
provided comments on publicly available information to value the
factors of production (``FOP''). None of the interested parties
provided comments on the selection of a surrogate country. On January
21, 2009, New-Tec submitted publicly available information to value the
financial ratios and submitted its supplemental questionnaire response.
On February 3, 2009, the Department issued a supplemental questionnaire
to New-Tec. On February 25, 2009, New-Tec submitted a supplemental
questionnaire response. On March 4, 2009, the Department published a
notice in the Federal Register extending the time limit for the
preliminary results of review until no later than May 1, 2009.\3\ On
March 20, 2009, the Department issued a supplemental questionnaire to
New-Tec. On March 30, 2009, Meco submitted comments on the supplemental
questionnaire response filed by New-Tec on February 24, 2009. On April
3, 2009, New-Tec submitted a supplemental questionnaire response. On
April 23, 2009, the Department issued a supplemental questionnaire to
New-Tec.
---------------------------------------------------------------------------
\3\ See Folding Metal Tables and Chairs from the People's
Republic of China: Notice of Extension of Time Limit for the
Preliminary Results of the Antidumping Duty Administrative Review,
74 FR 9385 (March 4, 2009).
---------------------------------------------------------------------------
On May 7, 2009 the Department published a notice in the Federal
Register extending the time limit further for the preliminary results
of review until June 30, 2009.\4\ On May 18, 2009, New-Tec submitted a
supplemental questionnaire response. On May 29, 2009, Meco provided
comments on publicly available information to value additional FOPs. On
June 3, 2009, Meco submitted comments on the May 18, 2009, supplemental
questionnaire response filed by New-Tec. On June 5, 2009, the
Department issued a supplemental questionnaire to New-Tec. On June 9,
2009, New-Tec submitted a supplemental questionnaire response.
---------------------------------------------------------------------------
\4\ See Folding Metal Tables and Chairs from the People's
Republic of China: Notice of Extension of Time Limit for the
Preliminary Results of the Antidumping Duty Administrative Review,
74 FR 21332 (May 7, 2009).
---------------------------------------------------------------------------
In accordance with 19 CFR 351.301(c)(3)(ii), for the final results
in an antidumping administrative review, interested parties may submit
publicly available information to value FOPs within 20 days after the
date of publication of these preliminary results of review.
Period of Review
The POR is June 1, 2007, through May 31, 2008.
Scope of 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
[[Page 32120]]
measurements of: height: 32.5 inches; width: 18.5 inches; and depth:
21.5 inches, is covered by the scope of the 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 as 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 than
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.
On May 6, 2009, the Department issued a final determination of
circumvention, determining 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 circumventing the order and are properly considered to be within
the class or kind of merchandise subject to the order on FMTCs from the
PRC.
On May 22, 2009, the Department issued a scope ruling determining
that folding metal chairs that have legs that are not connected with
cross-bars are within the scope of the antidumping duty order on
folding metal tables and chairs from the PRC.
Non-Market Economy Country Status
No party contested the Department's treatment of the PRC as a non-
market economy (``NME'') country, and the Department has treated the
PRC as an NME country in all past antidumping duty investigations and
administrative reviews and continues to do so in this case. See, e.g.,
Certain Cased Pencils from the People's Republic of China: Final
Results of Antidumping Duty Administrative Review, 72 FR 27074, 27075
(May 14, 2007) (``Pencils''). No interested party in this case has
argued that we should do otherwise. Designation as an NME country
remains in effect until it is revoked by the Department. See section
771(18)(C)(i) of the Act.
Surrogate Country
Section 773(c)(1) of the Act directs the Department to base NV on
the NME producer's FOPs, valued in a surrogate market-economy country
or countries considered to be appropriate by the Department. In
accordance with section 773(c)(4) of the Act, in valuing the FOPs, the
Department shall use, to the extent possible, the prices or costs of
the FOPs in one or more market-economy countries that are: (1) at a
level of economic development comparable to that of the NME country;
and (2) significant producers of comparable merchandise. The sources of
the surrogate factor values are discussed under the ``Normal Value''
section below. See Memorandum to The File, ``Preliminary Results of the
2007-2008 Administrative Review of Folding Metal Tables and Chairs from
the People's Republic of China: Surrogate Value Memorandum'' (June 30,
2009) (``Surrogate Value Memorandum'').
The Department determined that Columbia, India, Indonesia, Peru,
the Philippines and Thailand are countries comparable to the PRC in
terms of economic development. See Surrogate Country Memorandum. Once
we have identified the countries that are economically comparable to
the PRC, we select an appropriate surrogate country by determining
whether an economically comparable country is a significant producer of
comparable merchandise and whether the data for valuing FOPs are both
available and reliable.
The Department has determined that India is the appropriate
surrogate country for use in this review. The Department based its
decision on the following facts: (1) India is at a level of economic
development comparable to that of the PRC; (2) India is a significant
producer of comparable merchandise; and (3) India provides the best
opportunity to use quality, publicly available data to value the FOPs.
On the record of this review, we have usable surrogate financial data
from India, and no party has submitted surrogate financial data from
any other potential surrogate country. Additionally, the data submitted
by Meco and New-Tec for our consideration as potential surrogate values
are sourced from India.
Therefore, because India best represents the experience of
producers of comparable merchandise operating in a surrogate country,
we have selected India as the surrogate country and, accordingly, have
calculated NV using Indian prices to value the respondent's FOPs, when
available and appropriate. See Surrogate Value Memorandum. We have
obtained and relied upon publicly available information wherever
possible.
Separate Rates
In proceedings involving NME countries, the Department has a
rebuttable presumption that all companies within the country are
subject to government control and, thus, should be assessed a single
antidumping duty rate. See, e.g., Pencils, 72 FR at 27075. It is the
Department's policy to assign all exporters of merchandise subject to
review in an NME country this single rate unless an exporter can
demonstrate that it is sufficiently independent so as to be entitled to
a separate rate. Id. Exporters can demonstrate this independence
through the absence of both de jure and de facto government control
over export activities. The Department analyzes each entity exporting
the subject merchandise under a test arising from the Notice of Final
Determination of
[[Page 32121]]
Sales at Less Than Fair Value: Sparklers from the People's Republic of
China, 56 FR 20588, at Comment 1 (May 6, 1991) (``Sparklers''), as
further developed in Notice of Final Determination of Sales at Less
Than Fair Value: Silicon Carbide from the People's Republic of China,
59 FR 22585, 22587 (May 2, 1994) (``Silicon Carbide''). However, if the
Department determines that a company is wholly foreign-owned or located
in a market economy, then a separate-rate analysis is not necessary to
determine whether it is independent from government control.
A. Absence of De Jure Control
The Department considers the following de jure criteria in
determining whether an individual company may be granted a separate
rate: (1) an absence of restrictive stipulations associated with an
individual exporter's business and export licenses; (2) any legislative
enactments decentralizing control of companies; and (3) other formal
measures by the government decentralizing control of companies. See
Sparklers, 56 FR at 20589.
New-Tec has placed documents on the record to demonstrate the
absence of de jure control including its list of shareholders, business
license, and the Company Law of the PRC (``Company Law''). Other than
limiting New-Tec to activities referenced in the business license, we
found no restrictive stipulations associated with the license. In
addition, in previous cases the Department has analyzed the Company Law
and found that it establishes an absence of de jure control, lacking
record evidence to the contrary.\5\ We have no information in this
segment of the proceeding that would cause us to reconsider this
determination. Therefore, based on the foregoing, we have preliminarily
found an absence of de jure control for New-Tec.
---------------------------------------------------------------------------
\5\ See, e.g., Certain Non-Frozen Apple Juice Concentrate from
the People's Republic of China: Final Results, Partial Rescission
and Termination of a Partial Deferral of the 2002-2003
Administrative Review, 69 FR 65148, 65150 (November 10, 2004).
---------------------------------------------------------------------------
B. Absence of De Facto Control
Typically the Department considers four factors in evaluating
whether each respondent is subject to de facto government control of
its export functions: (1) whether the export prices are set by or are
subject to the approval of a government agency; (2) whether the
respondent has authority to negotiate and sign contracts and other
agreements; (3) whether the respondent has autonomy from the government
in making decisions regarding the selection of management; and (4)
whether the respondent retains the proceeds of its export sales and
makes independent decisions regarding disposition of profits or
financing of losses.\6\ The Department has determined that an analysis
of de facto control is critical in determining whether respondents are,
in fact, subject to a degree of government control that would preclude
the Department from assigning separate rates.
---------------------------------------------------------------------------
\6\ See Silicon Carbide, 59 FR at 22586-87; see also Notice of
Final Determination of Sales at Less Than Fair Value: Furfuryl
Alcohol From the People's Republic of China, 60 FR 22544, 22545 (May
8, 1995).
---------------------------------------------------------------------------
With regard to de facto control, New-Tec reported that: (1) it
independently set prices for sales to the United States through
negotiations with customers and these prices are not subject to review
by any government organization; (2) it did not coordinate with other
exporters or producers to set the price or to determine to which market
the companies will sell subject merchandise; (3) the PRC Chamber of
Commerce did not coordinate the export activities of New-Tec; (4) its
general manager has the authority to contractually bind it to sell
subject merchandise; (5) its board of directors appoints its general
manager; (6) there is no restriction on its use of export revenues; (7)
its shareholders ultimately determine the disposition of respective
profits, and New-Tec has not had a loss in the last two years; and (8)
none of New-Tec's board members or managers is a government official.
Furthermore, our analysis of New-Tec's questionnaire responses reveals
no information indicating government control of its export activities.
Therefore, based on the information on the record, we preliminarily
determine that there is an absence of de facto government control with
respect to New-Tec's export functions and that New-Tec has met the
criteria for the application of a separate rate.
The evidence placed on the record of this review by New-Tec
demonstrates an absence of de jure and de facto government control with
respect to its exports of subject merchandise, in accordance with the
criteria identified in Sparklers, 56 FR at 20589; and Silicon Carbide,
59 FR at 22587. Accordingly, we have preliminarily granted a separate
rate to New-Tec.
Date of Sale
19 CFR 351.401(i) states that:
In identifying the date of sale of the subject merchandise or
foreign like product, the Secretary normally will use the date of
invoice, as recorded in the exporter or producer's records kept in the
ordinary course of business. However, the Secretary may use a date
other than the date of invoice if the Secretary is satisfied that a
different date better reflects the date on which the exporter or
producer establishes the material terms of sale.
See also Allied Tube and Conduit Corp. v. United States, 132 F. Supp.
2d 1087, 1090-1092 (CIT 2001) (upholding the Department's rebuttable
presumption that invoice date is the appropriate date of sale). After
examining the questionnaire responses and the sales documentation
placed on the record by New-Tec, we preliminarily determine that
invoice date is the most appropriate date of sale for New-Tec. Nothing
on the record rebuts the presumption that invoice date should be the
date of sale.
Normal Value Comparisons
To determine whether sales of FMTCs to the United States by New-Tec
were made at less than NV, we compared export price (``EP'') to NV, as
described in the ``Export Price,'' and ``Normal Value'' sections of
this notice, pursuant to section 771(35) of the Act.
Export Price
Because New-Tec sold subject merchandise to unaffiliated purchasers
in the United States prior to importation into the United States or to
unaffiliated resellers outside the United States with knowledge that
the merchandise was destined for the United States, and use of a
constructed export price methodology is not otherwise indicated, we
have used EP in accordance with section 772(a) of the Act.
We calculated EP based on the free-on-board or delivered price to
unaffiliated purchasers for New-Tec. From this price, we deducted
amounts for foreign inland freight, international movement expenses,
air freight, brokerage and handling, and billing adjustments, as
applicable, pursuant to section 772(c)(2)(A) of the Act.\7\
---------------------------------------------------------------------------
\7\ See Memorandum to The File, ``Analysis for the Preliminary
Results of the 2007-2008 Administrative Review of Folding Metal
Tables and Chairs from the People's Republic of China: New-Tec
Integration (Xiamen) Co. Ltd. (``New-Tec'')'' (June 30, 2009)
(``New-Tec Preliminary Analysis Memorandum'').
---------------------------------------------------------------------------
The Department valued brokerage and handling using a simple average
of the brokerage and handling costs that were reported in public
submissions that were filed in three antidumping duty cases.
Specifically, we averaged the public brokerage and handling expenses
reported by Navneet Publications (India) Ltd. in the 2007-2008
administrative
[[Page 32122]]
review of certain lined paper products from India, Essar Steel Limited
in the 2006-2007 antidumping duty administrative review of hot-rolled
carbon steel flat products from India, and Himalya International Ltd.
in the 2005-2006 administrative review of certain preserved mushrooms
from India. The Department adjusted the average brokerage and handling
rate for inflation. See Surrogate Value Memorandum.
To value truck freight, we used the freight rates published by
www.infobanc.com, ``The Great Indian Bazaar, Gateway to Overseas
Markets.'' The logistics section of the website contains inland freight
truck rates between many large Indian cities. The truck freight rates
are for the period August 2008 through September 2008. Since these
dates are not contemporaneous with the POR, we deflated the rates using
Indian WPI. See Surrogate Value Memorandum.
Zero-Priced Transactions
In the final results of the 2003-2004, 2004-2005, 2005-2006 and the
2006-2007 administrative reviews of FMTCs, we included New-Tec's and/or
other respondents' zero-priced transactions in the margin calculation
because the record demonstrated that respondents' provided many pieces
of the same product, indicating that these ``samples'' did not
primarily serve for evaluation or testing of the merchandise.
Additionally, respondents provided ``samples'' to the same customers to
whom it was selling the same products in commercial quantities.\8\ As a
result, we concluded that these transactions were not what we consider
to be samples because respondents were not providing product to entice
its U.S. customers to buy the product.
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\8\ See Folding Metal Tables and Chairs from the People's
Republic of China; Final Results of Antidumping Duty Administrative
Review, 71 FR 2905 (January 18, 2006), and accompanying Issues and
Decision Memorandum at Comment 4; Folding Metal Tables and Chairs
from the People's Republic of China: Final Results of Antidumping
Duty Administrative Review, 71 FR 71509 (December 11, 2006), and
accompanying Issues and Decision Memorandum at Comment 4; and
Folding Metal Tables and Chairs from the People's Republic of China:
Final Results of Antidumping Duty Administrative Review, 72 FR 71355
(December 17, 2007), and accompanying Issues and Decision Memorandum
at Comments 10 and 11.
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The U.S. Court of Appeals for the Federal Circuit (``Federal
Circuit'') has not required the Department to exclude zero-priced or de
minimis sales from its analysis but, rather, has defined a sale as
requiring ``both a transfer of ownership to an unrelated party and
consideration.''\9\ The Court of International Trade (``CIT'') in NSK
Ltd. v. United States stated that it saw ``little reason in supplying
and re-supplying and yet re-supplying the same product to the same
customer in order to solicit sales if the supplies are made in
reasonably short periods of time,'' and that ``it would be even less
logical to supply a sample to a client that has made a recent bulk
purchase of the very item being sampled by the client.''\10\
Furthermore, the Courts have consistently ruled that the burden rests
with a respondent to demonstrate that it received no consideration in
return for its provision of purported samples.\11\ Moreover, even where
the Department does not ask a respondent for specific information to
demonstrate that a transaction is a sample, the respondent has the
burden of presenting the information in the first place to demonstrate
that its transactions qualify for exclusion.\12\
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\9\ See NSK Ltd. v. United States, 115 F.3d 965, 975 (Fed. Cir.
1997).
\10\ See NSK Ltd .v. United States, 217 F. Supp. 2d 1291, 1311-
1312 (CIT 2002)., 217 F. Supp. 2d 1291, 1311-1312 (CIT 2002).
\11\ See, e.g., Zenith Electronics Corp. v. United States, 988
F.2d 1573, 1583 (Fed. Cir. 1993) (explaining that the burden of
evidentiary production belongs ``to the party in possession of the
necessary information''). See also Tianjin Machinery Import & Export
Corp. v. United States, 806 F. Supp. 1008, 1015 (CIT 1992) (``The
burden of creating an adequate record lies with respondents and not
with {the Department{time} .'') (citation omitted).
\12\ See NTN Bearing Corp. of America. v. United States, 997
F.2d 1453, 1458 (Fed. Cir. 1993).
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An analysis of New-Tec's Section C computer sales listing reveals
that it provided zero-priced merchandise to the same customer to whom
it sold the same products in commercial quantities. Consequently, based
on the facts cited above, the guidance of past court decisions, and our
previous decisions, for the preliminary results of this review, we have
not excluded these zero-priced transactions from the margin calculation
for New-Tec.
Normal Value
Section 773(c)(1) of the Act provides that, in the case of an NME,
the Department shall determine NV using an FOP methodology if the
merchandise is exported from an NME and the information does not permit
the calculation of NV using home-market prices, third-country prices,
or constructed value under section 773(a) of the Act.
The Department bases NV on FOPs because the presence of government
controls on various aspects of these economies renders price
comparisons and the calculation of production costs invalid under our
normal methodologies. Therefore, we calculated NV based on FOPs in
accordance with sections 773(c)(3) and (4) of the Act and 19 CFR
351.408(c). The FOPs include: (1) hours of labor required; (2)
quantities of raw materials employed; (3) amounts of energy and other
utilities consumed; and (4) representative capital costs. In accordance
with 19 CFR 351.408(c)(1), the Department normally uses publicly
available information to value the FOPs. However, when a producer
sources a meaningful amount of an input from a market-economy country
and pays for it in market-economy currency, the Department may value
the factor using the actual price paid for the input.\13\ Further, the
Department disregards prices it has reason to suspect may be dumped or
subsidized.\14\
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\13\See 19 CFR 351.408(c)(1); see also Lasko Metal Products v.
United States, 43 F.3d 1442, 1445-1446 (Fed. Cir. 1994) (affirming
the Department's use of market-based prices to value certain FOPs).
\14\ See, e.g., China National Machinery Import & Export Corp.
v. United States, 293 F. Supp. 2d 1334, 1339 (CIT 2003) (aff'd, 104
Fed. Appx. 183 (Fed. Cir. 2004)), and see Antidumping Duties;
Countervailing Duties; Final Rule, 62 FR 27296, 27366 (May 19,
1997).
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We have reason to believe or suspect that prices of inputs from
Indonesia, South Korea, and Thailand may have been subsidized. We have
found in other proceedings that these countries maintain broadly
available, non-industry-specific export subsidies and, therefore, it is
reasonable to infer that all exports to all markets from these
countries may be subsidized.\15\ The legislative history explains that
we need not conduct a formal investigation to ensure that such prices
are not subsidized.\16\ Rather, Congress indicated that the Department
should base its decision on information that is available to it at the
time it makes its determination. Therefore, we have not used prices
from these countries in calculating the Indian import-based surrogate
values. In instances where respondents source a market economy input
solely from suppliers located in these countries, we used Indian
import-based surrogate values to value the input. In addition, we
excluded Indian
[[Page 32123]]
import data from NME countries and unidentified countries from our
surrogate value calculations.\17\
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\15\ See, e.g., Frontseating Service Valves from the People's
Republic of China; Preliminary Determination of Sales at Less Than
Fair Value, Preliminary Negative Determination of Critical
Circumstances, and Postponement of Final Determination, 73 FR 62952
(October 22, 2008) (unchanged in Frontseating Service Valves from
the People's Republic of China: Final Determination of Sales at Less
Than Fair Value and Final Negative Determination of Critical
Circumstances, 74 FR 10886 (March 13, 2009); and China National
Machinery Import & Export Corporation v. United States, 293 F. Supp.
2d 1334 (CIT 2003), affirmed 104 Fed. Appx. 183 (Fed. Cir. 2004).
\16\ See Omnibus Trade and Competitiveness Act of 1988,
Conference Report to Accompanying H.R. 3, H.R. Rep. 100-576 at 590-
91 (1988).
\17\ For a detailed description of all surrogate values used for
each respondent, see Surrogate Value Memorandum.
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Factor Valuations
In accordance with section 773(c) of the Act, we calculated NV
based on the FOPs reported by New-Tec for the POR. To calculate NV, we
multiplied the reported per-unit factor quantities by publicly
available Indian surrogate values (except as noted below). In selecting
the surrogate values, we considered the quality, specificity, and
contemporaneity of the data. As appropriate, we adjusted input prices
by including freight costs to render them delivered prices.
Specifically, we added to Indian import surrogate values a surrogate
freight cost using the shorter of the reported distance from the
domestic supplier to the factory or the distance from the nearest
seaport to the factory where appropriate (i.e., where the sales terms
for the market-economy inputs were not delivered to the factory). This
adjustment is in accordance with the decision of the Federal Circuit in
Sigma Corp. v. United States, 117 F. 3d 1401, 1408 (Fed. Cir. 1997).
For a detailed description of all surrogate values used for New-Tec,
see the Surrogate Value Memorandum.
Except as noted below, we valued raw material inputs using the
weighted-average unit import values derived from the Monthly Statistics
of the Foreign Trade of India, as published by the Directorate General
of Commercial Intelligence and Statistics of the Ministry of Commerce
and Industry, Government of India in the World Trade Atlas (``WTA''),
available at https://www.gtis.com/wta.htm. The WTA data are reported in
rupees and are contemporaneous with the POR. Where we could not obtain
publicly available information contemporaneous with the POR with which
to value FOPs, we adjusted the surrogate values using, where
appropriate, the Indian Wholesale Price Index as published in the
International Financial Statistics of the International Monetary Fund.
We used the U.S. Consumer Price Index as published in the Bureau of
Labor Statistics, to adjust the air freight and air fuel surcharge
values as published in AFMS Transportation Management Group. See
Surrogate Value Memorandum.
We further adjusted material input values to account for freight
costs incurred between the supplier and respondent. We used the freight
rates published by www.infobanc.com, ``The Great Indian Bazaar, Gateway
to Overseas Markets.'' The logistics section of the website contains
inland freight truck rates between many large Indian cities. The truck
freight rates are for the period August 2008 through May 2009. Since
these dates are not contemporaneous with the POR, we deflated the rates
using Indian WPI. See Surrogate Value Memorandum.
New-Tec made raw materials purchases from market-economy suppliers.
Therefore, in accordance with our practice outlined in Antidumping
Methodologies: Market Economy Inputs,\18\ where at least 33 percent of
an input was sourced from market-economy suppliers and purchased in a
market-economy currency, the Department will use actual weighted-
average purchase prices to value these inputs.\19\ Where the quantity
of the input purchased from market-economy suppliers during the period
was below 33 percent of its total volume of purchases of the input
during the period, the Department will weight-average the weighted
average market-economy purchase price with an appropriate surrogate
value. See Antidumping Methodologies: Market Economy Inputs. For a
complete description of the factor values we used, see Surrogate Value
Memorandum and New-Tec Preliminary Analysis Memorandum.
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\18\ See Antidumping Methodologies: Market Economy Inputs,
Expected Non-Market Economy Wages, Duty Drawback; and Request for
Comments, 71 FR 61716, 61717-19 (October 19, 2006) (``Antidumping
Methodologies: Market Economy Inputs'').
\19\ For a detailed description of all actual values used for
market-economy inputs, see New-Tec Preliminary Analysis Memorandum
dated concurrently with this notice.
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To value liquid petroleum gas, we used per-kilogram values obtained
from Bharat Petroleum, published June 4, 2009. We made adjustments to
account for inflation and freight costs incurred between the supplier
and New-Tec. See Surrogate Value Memorandum.
To value electricity, we used price data for small, medium, and
large industries, as published by the Central Electricity Authority of
the Government of India in its publication entitled ``Electricity
Tariff & Duty and Average Rates of Electricity Supply in India,'' dated
July 2006. These electricity rates represent actual country-wide,
publicly-available information on tax-exclusive electricity rates
charged to industries in India. See Surrogate Value Memorandum.
To value water, we used the revised Maharashtra Industrial
Development Corporation (``MIDC'') water rates available at https://www.midcindia.com/water-supply, which we deflated using Indian WPI. See
Surrogate Value Memorandum.
For direct labor, indirect labor and packing labor, consistent with
19 CFR 351.408(c)(3), we used the PRC regression-based wage rate as
reported on Import Administration's web site.\20\ Because this
regression-based wage rate does not separate the labor rates into
different skill levels or types of labor, we have applied the same wage
rate to all skill levels and types of labor reported by each
respondent. See Surrogate Value Memorandum.
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\20\ See Expected Wages of Selected NME Countries (May 14, 2008)
(available at https://ia.ita.doc.gov/wages). The source of these wage
rate data on Import Administration's web site is the Yearbook of
Labour Statistics 2005, ILO, (Geneva: 2005), Chapter 5B: Wages in
Manufacturing. The years of the reported wage rates range from 2004
to 2005.
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For factory overhead, selling, general, and administrative expenses
(``SG&A''), and profit values, both New-Tec and Meco submitted
identical financial statements to those that were submitted and
considered by the Department for use as surrogate financial statements
in the preceding administrative review; none of which is
contemporaneous with the current POR.\21\ The Department examined these
financial statements in the preceding administrative review and found
that Maximaa Systems Limited (``Maximaa'') produced a greater
proportion of comparable merchandise than the other companies (Infiniti
Modules PVT Ltd., Godrej & Boyce Manufacturing Company Limited, and
Tube Investments of India, Ltd.), and therefore best met the
Department's criteria for surrogate financial ratios. Because parties
have submitted for the instant review the same surrogate financial
statements as those from the prior review, and the record indicates
that Maximaa produced a greater proportion of comparable merchandise
than other surrogate companies whose financial statements were placed
on the record, we find that Maximaa continues to be the best available
information with which to determine factory overhead as a percentage of
the total raw materials, labor and energy (``ML&E'') costs; SG&A as a
percentage of ML&E plus overhead (i.e., cost of manufacture); and the
profit rate as a percentage of the cost of manufacture plus SG&A. See
Surrogate Value Memorandum for a full discussion of the calculation of
these ratios.
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\21\ See New-Tec's January 21, 2009, Surrogate Value Comments at
Exhibit 1, and Meco's January 21, 2009, Surrogate Value Comments at
Exhibit 7.
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For packing materials, we used the per-kilogram values obtained
from the
[[Page 32124]]
WTA and made adjustments to account for freight costs incurred between
the PRC supplier and New-Tec's plants. See Surrogate Value Memorandum.
Currency Conversion
We made currency conversions into U.S. dollars, in accordance with
section 773A(a) of the Act, based on the exchange rates in effect on
the dates of the U.S. sales, as certified by the Federal Reserve Bank.
Preliminary Results of Review
We preliminarily determine that the following weighted-average
dumping margin exists:
------------------------------------------------------------------------
Manufacturer/Exporter Margin (Percent)
------------------------------------------------------------------------
New-Tec............................................. 0.18*
------------------------------------------------------------------------
* de minimis
Disclosure
We will disclose the calculations used in our analysis to parties
to this proceeding within five days of the publication date of this
notice. See 19 CFR 351.224(b). Interested parties are invited to
comment on the preliminary results and may submit case briefs and/or
written comments within 30 days of the date of publication of this
notice. See 19 CFR 351.309(c). Interested parties may file rebuttal
briefs and rebuttals to written comments, limited to issues raised in
such briefs or comments, no later than five days after the date on
which the case briefs are due. See 19 CFR 351.309(d). The Department
requests that parties submitting written comments provide an executive
summary and a table of authorities as well as an additional copy of
those comments electronically.
Any interested party may request a hearing within 30 days of
publication of this notice. See 19 CFR 351.310(c). If a request for a
hearing is made, parties will be notified of the time and date for the
hearing to be held at the U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW, Washington, DC 20230. See 19 CFR 351.310(d).
The Department will issue the final results of this administrative
review, which will include the results of its analysis of issues raised
in any such comments, within 120 days of publication of these
preliminary results, pursuant to section 751(a)(3)(A) of the Act.
Deadline for Submission of Publicly Available Surrogate Value
Information
In accordance with 19 CFR 351.301(c)(3), the deadline for
submission of publicly available information to value FOPs under 19 CFR
351.408(c) is 20 days after the date of publication of the preliminary
results. In accordance with 19 CFR 351.301(c)(1), if an interested
party submits factual information less than ten days before, on, or
after (if the Department has extended the deadline), the applicable
deadline for submission of such factual information, an interested
party has ten days to submit factual information to rebut, clarify, or
correct the factual information no later than ten days after such
factual information is served on the interested party. However, the
Department generally will not accept in the rebuttal submission
additional, alternative surrogate value information not previously on
the record, if the deadline for submission of surrogate value
information has passed.\22\ Furthermore, the Department generally will
not accept business proprietary information in either the surrogate
value submissions or the rebuttals thereto, as the regulation regarding
the submission of surrogate values allows only for the submission of
publicly available information.
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\22\ See, e.g., Glycine from the People's Republic of China:
Final Results of Antidumping Duty Administrative Review and Final
Rescission, in Part, 72 FR 58809 (October 17, 2007), and
accompanying Issues and Decision Memorandum at Comment 2.
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Assessment Rates
Upon issuance of the final results, the Department will determine,
and CBP shall assess, antidumping duties on all appropriate entries
covered by this review. The Department intends to issue assessment
instructions to CBP 15 days after the publication date of the final
results of this review. In accordance with 19 CFR 351.212(b)(1), we
calculated exporter/importer (or customer)-specific assessment rates
for the merchandise subject to this review.
Where the respondent reports reliable entered values, we calculate
importer (or customer)-specific ad valorem rates by aggregating the
dumping margins calculated for all U.S. sales to each importer (or
customer) and dividing this amount by the total entered value of the
sales to each importer (or customer). See 19 CFR 351.212(b)(1). Where
an importer (or customer)-specific ad valorem rate is greater than de
minimis, we will apply the assessment rate to the entered value of the
importers'/customers' entries during the POR. See 19 CFR 351.212(b)(1).
Where we do not have entered values for all U.S. sales, we calculate a
per-unit assessment rate by aggregating the antidumping duties due for
all U.S. sales to each importer (or customer) and dividing this amount
by the total quantity sold to that importer (or customer).
To determine whether the duty assessment rates are de minimis, in
accordance with the requirement set forth in 19 CFR 351.106(c)(2), we
calculated importer (or customer)-specific ad valorem ratios based on
the estimated entered value. Where an importer (or customer)-specific
ad valorem rate is zero or de minimis, we will instruct CBP to
liquidate appropriate entries without regard to antidumping duties. See
19 CFR 351.106(c)(2).
Cash Deposit Requirements
The following cash deposit requirements will be effective upon
publication of the final results of this administrative review for all
shipments of the subject merchandise entered, or withdrawn from
warehouse, for consumption on or after the publication date, as
provided for by section 751(a)(2)(C) of the Act: (1) for New-Tec, the
cash deposit rate will be the company-specific rate established in the
final results of review (except, if the rate is zero or de minimis, no
cash deposit will be required); (2) for previously investigated or
reviewed PRC and non-PRC exporters not listed above that have separate
rates, the cash deposit rate will continue to be the exporter-specific
rate published for the most recent period; (3) for all PRC exporters of
subject merchandise that have not been found to be entitled to a
separate rate, the cash deposit rate will be the PRC-wide rate of 70.71
percent; and (4) for all non-PRC exporters of subject merchandise that
have not received their own rate, the cash deposit rate will be the
rate applicable to the PRC exporters that supplied that non-PRC
exporter. These deposit requirements, when imposed, shall remain in
effect until further notice.
Notification to Importers
This notice also serves as a preliminary reminder to importers of
their responsibility under 19 CFR 351.402(f) to file a certificate
regarding the reimbursement of antidumping duties prior to liquidation
of the relevant entries during this review period. Failure to comply
with this requirement could result in the Secretary's presumption that
reimbursement of antidumping duties occurred and the subsequent
assessment of double antidumping duties.
This determination is issued and published in accordance with
sections 751(a)(1) and 777(i)(1) of the Act.
[[Page 32125]]
Dated: June 30, 2009.
John M. Andersen,
Acting Deputy Assistant Secretary for Antidumping and Countervailing
Duty Operations.
[FR Doc. E9-15963 Filed 7-6-09; 8:45 am]
BILLING CODE 3510-DS-S