[Federal Register Volume 73, Number 135 (Monday, July 14, 2008)]
[Notices]
[Pages 40285-40293]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-15949]


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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 
and Intent to Revoke in Part

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, 2006, through May 31, 2007. We 
have preliminarily determined that Feili Furniture Development Limited 
Quanzhou City, Feili Furniture Development Co., Ltd., Feili Group 
(Fujian) Co., Ltd., and Feili (Fujian) Co., Ltd. (collectively 
``Feili'') and Dongguan Shichang Metals Factory Co., Ltd. 
(``Shichang''), did not make sales 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 assess antidumping duties on 
all appropriate entries of subject merchandise during the POR.
    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 14, 2008.

FOR FURTHER INFORMATION CONTACT: Lilit Astvatsatrian or Charles Riggle, 
AD/CVD Operations, Office 8, Import Administration, International Trade

[[Page 40286]]

Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-
6412 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 1, 2007, 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, 72 FR 
30542 (June 1, 2007). In accordance with 19 CFR 351.213(b)(1), 
interested parties made the following requests for review: (1) on June 
2, 2007, Feili, a producer/exporter of subject merchandise, requested 
that the Department conduct an administrative review of its sales;\1\ 
(2) on June 25, 2007, Meco Corporation (``Meco''), a domestic producer 
of the like product, and Cosco Home & Office Products (``Cosco''), a 
U.S. importer of subject merchandise, each requested that the 
Department conduct administrative reviews of Feili and New-Tec 
Integration (Xiamen) Co. Ltd. (``New-Tec'');\2\ (3) on July 2, 2007,\3\ 
New-Tec and Shichang, producers/exporters of subject merchandise, 
requested that the Department conduct an administrative review of their 
respective sales.\4\
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    \1\ Feili's request for administrative review included a request 
for revocation.
    \2\ Although Cosco requested revocation on behalf of Feili and 
New-Tec, 19 CFR 351.222(e) only permits an exporter or a producer to 
request revocation. Thus, Cosco cannot request revocation because it 
is not an exporter or a producer.
    \3\ Because June 30, 2007, fell on a Saturday, the deadline for 
requesting a review was July 2, 2007, the next business day.
    \4\ New-Tec's request for administrative review included a 
request for revocation; however, based on the final results of the 
previous administrative review, New-Tec is not eligible for 
revocation. See ``Intent to Revoke'' section, below.
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    On July 26, 2007, the Department published the initiation of the 
administrative review of the antidumping duty order on FMTCs from the 
PRC. See Initiation of Antidumping and Countervailing Duty 
Administrative Reviews and Request for Revocation in Part, 72 FR 41057 
(July 26, 2007).
    The Department issued antidumping duty questionnaires to Shichang, 
Feili, and New-Tec on August 7, 2007. On September 4, 2007, Feili, 
Shichang, and New-Tec submitted a Section A questionnaire response 
(``AQR''), and on September 27, 2007, Shichang, Feili, and New-Tec 
submitted Section C and D questionnaire responses (``CQR'' and ``DQR,'' 
respectively). On November 27, 2007, the Department issued supplemental 
questionnaires to New-Tec and Feili. On December 18, 2007, New-Tec and 
Feili submitted supplemental questionnaire responses. On December 28, 
2007, the Department issued a supplemental questionnaire to Shichang. 
On January 25, 2008, Shichang submitted a supplemental questionnaire 
response. On February 21, 2008, the Department requested the Office of 
Policy to provide a list of surrogate countries for this review. See 
Memorandum to Ron Lorentzen, Director, Office of Policy, ``Certain 
Folding Metal Tables and Chairs from the People's Republic of China: 
Request for Surrogate Country Selection'' (February 21, 2008). On 
February 21, 2008, the Office of Policy issued its list of surrogate 
countries. See Memorandum from Carole Showers, Acting Director, Office 
of Policy, ``Administrative Review of Certain Folding Metal Tables and 
Chairs (``Tables and Chairs'') from the People's Republic of China 
(PRC): Request for a List of Surrogate Countries'' (February 21, 2008) 
(``Surrogate Country Memorandum'').
    On February 25, 2008, the Department requested interested parties 
to submit surrogate value information and to provide surrogate country 
selection comments. On March 4, 2008, the Department published a notice 
in the Federal Register extending the time limit for the preliminary 
results of review until no later than May 30, 2008. 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, 73 FR 11615 (March 4, 2008). Meco provided 
comments on publicly available information to value the factors of 
production (``FOP'') on March 10, 2008. None of the interested parties 
provided comments on the selection of a surrogate country. On March 17, 
2008, Feili provided rebuttal comments on Meco's March 10, 2008, 
surrogate value submission. On May 12, 2008, Meco provided comments 
about applying surrogate values to Feili's and New-Tec's factor of 
cold-rolled steel.
    On May 29, 2007, the Department published a notice in the Federal 
Register extending the time limit for the preliminary results of review 
until no later than June 30, 2008. 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, 73 FR 30881 (May 29, 2008). On May 30, 2008, New-Tec provided 
rebuttal comments on Meco's May 12, 2008, comments about applying 
surrogate values to New-Tec's factor of cold-rolled steel.
    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.

Verification of Responses

    As provided in section 782(i) of the Act, we intend to verify the 
information from Feili upon which we will rely in making our final 
results, including information relevant to revocation.

Period of Review

    The POR is June 1, 2006, through May 31, 2007.

Scope of the Order

    The products covered by this order consist of assembled and 
unassembled folding tables and folding chairs made primarily or 
exclusively from steel or other metal, as described below:
    1) Assembled and unassembled folding tables made primarily or 
exclusively from steel or other metal (folding metal tables). Folding 
metal tables include square, round, rectangular, and any other shapes 
with legs affixed with rivets, welds, or any other type of fastener, 
and which are made most commonly, but not exclusively, with a hardboard 
top covered with vinyl or fabric. Folding metal tables have legs that 
mechanically fold independently of one another, and not as a set. The 
subject merchandise is commonly, but not exclusively, packed singly, in 
multiple packs of the same item, or in five piece sets consisting of 
four chairs and one table. Specifically excluded from the scope of the 
order regarding folding metal tables are the following:
    a. Lawn furniture;
    b. Trays commonly referred to as ``TV trays'';
    c. Side tables;
    d. Child-sized tables;
    e. Portable counter sets consisting of rectangular tables 
36 high and matching stools; and,
    f. 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.

[[Page 40287]]

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:
    a. Folding metal chairs with a wooden back or seat, or both;
    b. Lawn furniture;
    c. Stools;
    d. Chairs with arms; and
    e. Child-sized chairs.
    The subject merchandise is currently classifiable under subheadings 
9401.71.0010, 9401.71.0030, 9401.79.0045, 9401.79.0050, 9403.20.0015, 
9403.20.0030, 9403.70.8010, 9403.70.8020, and 9403.70.8030 of the 
Harmonized Tariff Schedule of the United States (``HTSUS'').\5\ 
Although the HTSUS subheadings are provided for convenience and customs 
purposes, the Department's written description of the scope of the 
order is dispositive.
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    \5\ Originally the scope included HTSUS number 9403.20.0010 but, 
effective July 1, 2003, HTSUS number 9403.20.0010 (metal household 
furniture) was eliminated from the HTS code. HTSUS numbers 
9403.20.0011 (ironing boards) and 9403.20.0015 (other) were added in 
its place. HTSUS number 9403.20.0015 contains merchandise in HTSUS 
number 9403.20.0010 except for ironing boards.
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    Based on a request by RPA International Pty., Ltd. and RPS, LLC, 
the Department ruled on January 13, 2003, that poly-fold metal folding 
chairs are within the scope of the order.
    On May 5, 2003, in response to a request by Staples, the Office 
Superstore Inc. (``Staples''), the Department issued a scope ruling 
that the chair component of Staples' ``Complete Office-To-Go,'' a 
folding chair with a tubular steel frame and a seat and back of 
plastic, with measurements of: height: 32.5 inches; width: 18.5 inches; 
and depth: 21.5 inches, is covered by the scope of the 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.
    On July 13, 2005, the Department issued a scope ruling determining 
that ``butterfly'' chairs are excluded from the scope of the 
antidumping duty order. Butterfly chairs are described as consisting of 
a collapsible metal rod frame and a cover, such that when the chair 
frame is spread open, the pockets of the cover are slipped over the 
upper ends of the frame and the cover provides both the seating surface 
and back of the chair. The frame consists of eight s-shaped pieces 
(with the ends offset at almost a 90-degree angle) made from metal rods 
that are connected by hinges. In order to collapse the frame, the chair 
cover must be removed. The frame is collapsed by moving the four legs 
inward until they meet in the center, similar to the folding mechanism 
of a pocket umbrella.
    On July 13, 2005, the Department issued a scope ruling determining 
that folding metal chairs, with wooden seats that have been padded with 
foam and covered with fabric or polyvinyl chloride and attached to the 
tubular steel seat frame with screws, are within the scope of the 
antidumping duty order.
    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. Moon chairs are described as containing 
circular, fabric-padded, concave cushions that envelop the user at 
approximately a 105-degree reclining angle. The fabric cushion is 
ringed and supported by two curved 16-mm steel tubes. The cushion is 
attached to this ring by nylon fabric. The cushion is supported by a 
16-mm steel tube four-sided rectangular cross-brace mechanism that 
constitutes the moon chair's legs. This mechanism supports and attaches 
to the encircling tubing and enables the moon chair to be folded. To 
fold the chair, the user pulls on a fabric handle in the center of the 
seat cushion of the chair.
    On October 4, 2007, the Department determined that International E-
Z Up Inc.'s Instant Work Bench is not within the scope of the 
antidumping duty order from the PRC because E-Z Up's Instant Work 
Bench's legs and weight do not match the description of folding metal 
tables in the scope of the order or in the ITC's final report.
    On April 18, 2008, the Department issued a scope ruling determining 
that Ignite USA LLC's Vika Twofold 2-in-1 workbench/scaffold is not 
within the scope of the antidumping duty order because the rotating leg 
mechanism differs from folding metal tables that are subject to the 
order, and its weight is almost twice as much as the expected maximum 
weight for folding metal tables.

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). 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 Wendy Frankel, Director, Office 8, AD/
CVD Operations, ``Preliminary Results of the 2006-2007 Administrative 
Review of Folding Metal Tables and Chairs from the People's Republic of 
China: Surrogate Value Memorandum'' (June 30, 2008) (``Surrogate Value 
Memorandum'').
    The Department determined that India, Indonesia, the Philippines, 
Colombia, 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

[[Page 40288]]

significant producer of comparable merchandise and whether the data for 
valuing FOPs is 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, but no such surrogate financial data from any other 
potential surrogate country. Additionally, the data submitted by both 
parties 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 respondents' 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. 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. 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 Sales at Less Than 
Fair Value: Sparklers from the People's Republic of China, 56 FR 20588 
(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.
1. Wholly Foreign-Owned
    Feili and Shichang reported that they are wholly owned by market-
economy entities. Therefore, consistent with the Department's practice, 
a separate-rates analysis is not necessary to determine whether Feili's 
and Shichang's export activities are independent from government 
control, and we have preliminarily granted a separate rate to Feili and 
Shicheng.
2. Located in a Market Economy with No PRC Ownership
    No companies in this administrative review are located outside the 
PRC. Therefore, we are not addressing this ownership structure in these 
preliminary results of review.
3. Joint Ventures Between Chinese and Foreign Companies or Wholly 
Chinese-Owned Companies
    New-Tec stated that is a joint venture between Chinese and foreign 
companies. Therefore, the Department must analyze whether New-Tec can 
demonstrate the absence of both de jure and de facto government control 
over export activities.

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.\6\
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    \6\ See Sparklers, 56 FR at 20589.
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    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.\7\ 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.
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    \7\ 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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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.\8\ 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 which would preclude 
the Department from assigning separate rates.
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    \8\ See Silicon Carbide, 59 FR at 22587; 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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    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. 
Additionally, New-Tec's questionnaire responses did not suggest that 
pricing is coordinated among exporters. Furthermore, our analysis of 
New-Tec's questionnaire responses reveals no other 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

[[Page 40289]]

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 and Silicon Carbide. 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 Feili, Shichang, and New-Tec, we preliminarily 
determine that invoice date is the most appropriate date of sale for 
each respondent. We made this determination based on statements on the 
record that indicate that Feili's, Shichang's, and New-Tec's invoices 
establish the material terms of sale to the extent required by our 
regulations.\9\ Nothing on the record rebuts the presumption that 
invoice date should be the date of sale.
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    \9\ See Feili's CQR at C-10; Shichang's CQR at 11; and New Tec's 
CQR at 11.
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Normal Value Comparisons

    To determine whether sales of FMTCs to the United States by Feili, 
Shichang, and 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 Feili, Shichang, and 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 Feili, Shichang, and 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.\10\
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    \10\ See Memorandum regarding ``Analysis for the Preliminary 
Results of the 2006-2007 Administrative Review of Folding Metal 
Tables and Chairs from the People's Republic of China: Dongguan 
Shichang Metals Factory Co., Ltd. (`Shichang')'' (June 30, 2008) 
(``Shichang Preliminary Analysis Memorandum''); Memorandum regarding 
``Analysis for the Preliminary Results of the 2006-2007 
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, 2008) (``New-Tec Preliminary Analysis 
Memorandum''); and Memorandum regarding ``Analysis for the 
Preliminary Results of the 2006-2007 Administrative Review of 
Folding Metal Tables and Chairs from the People's Republic of China: 
Feili Furniture Development Limited Quanzhou City, Feili Furniture 
Development Co., Ltd., Feili Group (Fujian) Co., Ltd., Feili 
(Fujian) Co., Ltd. (collectively, `Feili')'' (June 30, 2008) 
(``Feili Preliminary Analysis Memorandum'').
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    We used three sources to calculate a surrogate value for domestic 
brokerage expenses. The Department averaged July 2004-June 2005 data 
contained in the January 9, 2006, public version of Kejriwal Paper 
Ltd.'s (``Kejriwal'') response submitted in the antidumping duty 
investigation of lined paper products from India,\11\ the February 
2004-January 2005 data contained in the May 24, 2005, public version of 
Agro Dutch Industries Limited's (``Agro Dutch'') response submitted in 
the administrative review of the antidumping duty order on certain 
preserved mushrooms from India,\12\ and December 2003-November 2004 
data contained in the February 28, 2005, public version of Essar 
Steel's (``Essar'') response submitted in the antidumping duty 
administrative review of hot-rolled carbon steel flat products from 
India.\13\ The brokerage expense data reported by Kejriwal, Essar, and 
Agro Dutch in their public versions are ranged data. The Department 
first derived an average per-unit amount from each source. Then the 
Department adjusted each average rate for inflation. Finally, the 
Department averaged the three per-unit amounts to derive an overall 
average rate for the POR. See Surrogate Value Memorandum.
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    \11\ See Preliminary Determination of Sales at Less Than Fair 
Value, Postponement of Final Determination, and Affirmative 
Preliminary Determination of Critical Circumstances in Part: Certain 
Lined Paper Products from India, 71 FR 19706 (April 17, 2006) 
(unchanged in Notice of Final Determination of Sales at Less Than 
Fair Value, and Negative Determination of Critical Circumstances: 
Certain Lined Paper Products from India, 71 FR 45012 (August 8, 
2006)).
    \12\ See Certain Preserved Mushrooms From India: Preliminary 
Results of Antidumping Duty Administrative Review, 70 FR 10597, 
10599 (March 4, 2005) (unchanged in Certain Preserved Mushrooms From 
India: Final Results of Antidumping Duty Administrative Review, 70 
FR 37757 (June 30, 2005)).
    \13\ See Certain Hot-Rolled Carbon Steel Flat Products From 
India: Preliminary Results of Antidumping Duty Administrative 
Review, 71 FR 2018, 2021 (January 12, 2006) (unchanged in Certain 
Hot-Rolled Carbon Steel Flat Products From India: Final Results of 
Antidumping Duty Administrative Review, 71 FR 40694 (July 18, 
2006)).
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    To value truck freight, we used the freight rates published by 
Indian Freight Exchange, available at http://www.infreight.com. Where 
applicable, we valued air freight using the rates published on the UPS 
website: http://www.ups.com. The truck and air-freight rates are not 
contemporaneous with the POR; therefore, we made adjustments for 
inflation. See Surrogate Value Memorandum.

Zero-Priced Transactions

    In the final results of the 2003-2004, 2004-2005, and the 2005-2006 
administrative reviews of FMTCs, we included Feili and/or New-Tec's 
zero-priced transactions in the margin calculation because the record 
demonstrated that Feili and New-Tec provided many pieces of the same 
product, indicating that these ``samples'' did not primarily serve for 
evaluation or testing of the merchandise; and Feili and New-Tec 
provided ``samples'' to the same customers to whom it was selling the 
same products in commercial quantities.\14\ As a result, we concluded 
that these transactions were not what we consider to be samples because 
Feili and New-Tec were not providing product to entice its U.S. 
customers to buy the product.
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    \14\ 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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[[Page 40290]]

    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.''\15\ 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.''\16\ 
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.\17\ 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.\18\
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    \15\ See NSK Ltd. v. United States, 115 F.3d 965, 975 (Fed. Cir. 
1997).
    \16\ NSK Ltd .v. United States, 217 F. Supp. 2d 1291, 1311-1312 
(CIT 2002).
    \17\ 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).
    \18\ See NTN Bearing Corp. of America. v. United States, 997 
F.2d 1453, 1458 (Fed. Cir. 1993).
---------------------------------------------------------------------------

    An analysis of Feili's, New-Tec's and Shichang's Section C computer 
sales listings reveals that all companies provided zero-priced 
merchandise to the same customers to whom they were selling, or had 
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 transactions from the margin calculation for either 
Feili, New-Tec or Shichang.

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 will normally value 
the factor using the actual price paid for the input. 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). Further, the Department 
disregards prices it has reason to suspect may be dumped or subsidized. 
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)).
    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.\19\ The legislative history explains that 
we need not conduct a formal investigation to ensure that such prices 
are not subsidized.\20\ 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 import data from NME countries and unidentified 
countries from our surrogate value calculations.\21\
---------------------------------------------------------------------------

    \19\ See, e.g., Notice of Final Determination of Sales at Less 
Than Fair Value and Negative Final Determination of Critical 
Circumstances: Certain Color Television Receivers From the People's 
Republic of China, 69 FR 20594 (April 16, 2004), and accompanying 
Issues and Decision Memorandum at Comment 7.
    \20\ See Omnibus Trade and Competitiveness Act of 1988, 
Conference Report to Accompanying H.R. 3, H.R. Rep. 100-576 at 590-
91 (1988).
    \21\ For a detailed description of all surrogate values used for 
each respondent, see Surrogate Value Memorandum.
---------------------------------------------------------------------------

Factor Valuations

    In accordance with section 773(c) of the Act, we calculated NV 
based on the FOPs reported by respondents 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 respondents, 
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, available 
at http://www.gtis.com/wta.htm (``WTA''). 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

[[Page 40291]]

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 Indian Freight Exchange available at http://www.infreight.com, to value truck freight, for the period June 1, 2005, 
to October 31, 2005, and made an adjustment for inflation.
    Pursuant to 19 CFR 351.408(c)(1), when a respondent sources inputs 
from a market-economy supplier in meaningful quantities (i.e., not 
insignificant quantities), we use the actual price paid by respondents 
for those inputs, except when prices may have been distorted by 
findings of dumping by the PRC and/or subsidies.\22\ Feili, New-Tec and 
Shichang each made significant raw materials purchases from market-
economy suppliers. Therefore, in accordance with our practice outlined 
in Antidumping Methodologies: Market Economy Inputs,\23\ we used the 
actual purchases of these inputs to value these inputs.\24\ Where the 
quantity of the input purchased from market-economy suppliers is 
insignificant, the Department will not rely on the price paid by an NME 
producer to a market-economy supplier because it cannot have confidence 
that a company could fulfill all its needs at that price. In instances 
where the quantity purchased was insignificant but meaningful, we 
determined the surrogate value as the weighted-average value of the 
market-economy input price and the Indian import value of the input. 
When the market-economy purchases of a given input were not meaningful, 
we disregarded the market-economy input price and based the surrogate 
value on the Indian import value. For a complete description of the 
factor values we used, see Surrogate Value Memorandum, Feili 
Preliminary Analysis Memorandum, Shichang Preliminary Analysis 
Memorandum, and New-Tec Preliminary Analysis Memorandum.
---------------------------------------------------------------------------

    \22\ See Antidumping Duties; Countervailing Duties; Final Rule, 
62 FR 27296, 27366 (May 19, 1997).
    \23\ 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'').
    \24\ For a detailed description of all actual values used for 
market-economy inputs, see the company-specific analysis memoranda 
dated concurrently with this notice.
---------------------------------------------------------------------------

    To value diesel oil and liquid petroleum gas, we used per-kilogram 
values obtained from Bharat Petroleum, published February 22, 2007. We 
made adjustments to account for inflation and freight costs incurred 
between the supplier and respondents. See Surrogate Value Memorandum.
    To value electricity, we used the fourth quarter of 2002 
electricity price data from International Energy Agency, Key World 
Energy Statistics, adjusted for inflation. See Surrogate Value 
Memorandum.
    To value water, we used the Revised Maharashtra Industrial 
Development Corporation water rates for June 1, 2003, available at 
http://www.midcindia.com/water-supply, adjusted for inflation. 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 the Import Administration's home page. See Expected Wages 
of Selected NME Countries (finalized May 2008) (available at http://ia.ita.doc.gov/wages). The source of these wage rate data on the Import 
Administration's web site is the Yearbook of Labour Statistics 2003, 
ILO (Geneva: 2003), Chapter 5B: Wages in Manufacturing. The years of 
the reported wage rates range from 1998 to 2004. 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, we used information from Godrej and 
Boyce Manufacturing Co. Ltd. for the year ending March 31, 2007.\25\ 
From this information, we were able 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. We did not use the 
surrogate financial statements of Tube Investments of India Limited 
because it is not a producer of comparable merchandise.\26\ 
Additionally, we did not use the surrogate financial statements of 
Infiniti Modules Pvt. Ltd. for the year ending March 31, 2006, because 
they are not contemporaneous with the POR and are missing the profit 
and loss statement, thus affecting the Department's ability to analyze 
the company's income and expenses for purposes of surrogate financial 
ratio calculations.\27\ Finally, we disregarded the surrogate financial 
statements of Infiniti Modules Pvt. Ltd. for the year ending March 31, 
2005, and Godrej and Boyce Manufacturing Co. Ltd. for the year ending 
March 31, 2006, because they are not contemporaneous with the POR.\28\
---------------------------------------------------------------------------

    \25\ See Meco's May 12, 2008, Surrogate Value Comments at 
Exhibit 7D.
    \26\ See Meco's May 12, 2008, Surrogate Value Comments at 
Exhibit 7E; and Feili's March 17, 2008, Surrogate Value Rebuttal 
Comments at Exhibit 1.
    \27\ See Meco's May 12, 2008 Surrogate Value Comments at Exhibit 
7B; and Feili's March 17, 2008, Surrogate Value Rebuttal Comments at 
Exhibit 2.
    \28\ See Meco's May 12, 2008, Surrogate Value Comments at 
Exhibits 7A and 7C.
---------------------------------------------------------------------------

    For packing materials, we used the per-kilogram values obtained 
from the WTA and made adjustments to account for freight costs incurred 
between the PRC supplier and respondent. 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. 
However, where we calculated SV based on the weighted-average value of 
market-economy purchases and surrogate values, we made currency 
conversions using the average exchange rate for the POR.

Intent to Revoke in Part

    On June 2, 2007, and July 2, 2007, respectively, Feili and New-Tec 
requested that, pursuant to 19 CFR 351.222(b)(2), the Department revoke 
the antidumping duty order, in part, based on their three consecutive 
years of sales at not less than NV. Feili and New-Tec submitted, along 
with their revocation requests, a certification stating that: 1) each 
company sold subject merchandise at not less than NV during the POR, 
and that in the future each company would not sell such merchandise at 
less than NV (see 19 CFR 351.222(e)(1)(i); 2) each company has sold the 
subject merchandise to the United States in commercial quantities 
during each of the past three years (see 19 CFR 351.222(e)(1)(ii); and 
3) each company agreed to its immediate reinstatement in the order, as 
long as any exporter or producer is subject to the order, if the 
Department concludes that the company, subsequent to the revocation, 
sold the subject merchandise at less than NV. See 19 CFR 
351.222(b)(2)(iii), and as referenced at 19 CFR 351.222(e)(1)(iii).
    Based on the preliminary results in this review and the final 
results of the two preceding reviews (see Folding

[[Page 40292]]

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 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), we have preliminarily 
determined that Feili has demonstrated three consecutive years of sales 
at not less than NV. Furthermore, Feili claims that its aggregate sales 
to the United States have been made in commercial quantities during the 
last three segments of this proceeding. We intend to pursue this issue 
after these preliminary results. We have preliminarily determined that 
New-Tec has not demonstrated three consecutive years of sales at not 
less than NV because New-Tec's margin was above de minimis in the final 
results of the prior administrative review, covering the year 
immediately preceding the current POR. See 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). Accordingly, we have determined that New-Tec is not eligible for 
revocation in this review. In addition, the preliminary results for 
New-Tec indicate that its calculated margin in this review is also 
above de minimis.
    Interested parties are invited to comment in their case briefs on 
all of the requirements that must be met by Feili and New Tec under 19 
CFR 351.222 to qualify for revocation from the antidumping duty order. 
Based on the above facts and absent any evidence to the contrary, the 
Department preliminarily determines that the continued application of 
the order to Feili is not otherwise necessary to offset dumping. 
Therefore, if these preliminary findings are affirmed in our final 
results, we intend to revoke the order with respect to merchandise 
exported by Feili. In accordance with 19 CFR 351.222(f)(3), we will 
terminate the suspension of liquidation for any such merchandise 
entered, or withdrawn from warehouse, for consumption on or after June 
1, 2007, and will instruct CBP to refund any cash deposit.

Preliminary Results of Review

    We preliminarily determine that the following weighted-average 
dumping margins exist:

------------------------------------------------------------------------
                Manufacturer/Exporter                  Margin (Percent)
------------------------------------------------------------------------
New-Tec.............................................                0.64
Feili...............................................           0.08[ast]
Shichang............................................           0.01[ast]
------------------------------------------------------------------------
[ast]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 seven days of the release of the final 
verification report issued in this review. 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). Any interested party may request a hearing within 30 
days of publication of this notice. See 19 CFR 351.310(c). We will hold 
a hearing, if requested, two days after the deadline for submission of 
the rebuttal briefs. See 19 CFR 351.310(d). The Department requests 
that parties submitting written comments also provide the Department 
with an additional copy of those comments on diskette. 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, 
pursuant to 19 CFR 351.301(c)(1), 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. See 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. 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.

Assessment Rates

    Upon issuance of the final results, the Department will determine, 
and CBP shall assess, antidumping duties on all appropriate entries. 
The Department intends to issue assessment instructions to CBP 15 days 
after the date of publication of the final results of review. If these 
preliminary results are adopted in our final results of review, we will 
direct CBP to assess the resulting rate against the entered customs 
value for the subject merchandise on each importer's/customer's entries 
during the POR, as appropriate.

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 the above-
listed respondents, which have a separate rate, 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.

[[Page 40293]]

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.

    Dated: June 30, 2008.
David M. Spooner,
Assistant Secretary for Import Administration.
[FR Doc. E8-15949 Filed 7-11-08; 8:45 am]
BILLING CODE 3510-DS-S