[Federal Register Volume 73, Number 208 (Monday, October 27, 2008)]
[Notices]
[Pages 63684-63686]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-25558]


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DEPARTMENT OF COMMERCE

International Trade Administration

A-570-868


Affirmative Preliminary Determination of Circumvention of the 
Antidumping Duty Order on Folding Metal Tables and Chairs from the 
People's Republic of China

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

ACTION: Notice of Preliminary Determination of Circumvention of 
Antidumping Duty Order

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SUMMARY: We preliminarily determine that imports from the People's 
Republic of China (``PRC'') of folding metal tables with legs connected 
by cross-bars, so that the legs fold in sets, and otherwise meeting the 
description of in-scope merchandise, are within the class or kind of 
merchandise subject to the order on folding metal tables and chairs 
(``FMTCs'') from the PRC.

EFFECTIVE DATE: October 27, 2008.

FOR FURTHER INFORMATION CONTACT: Charles Riggle, Import Administration, 
International Trade Administration, U.S. Department of Commerce, 14th 
Street and Constitution Avenue, NW, Washington, DC, 20230; telephone: 
(202) 482-0650.

SUPPLEMENTARY INFORMATION:

Background

    On October 31, 2005, Meco requested that the Department of Commerce 
(``Department'') determine whether folding metal tables with cross-bars 
are circumventing the order. On June 1, 2006, the Department initiated 
a formal anti-circumvention inquiry relating to minor alterations with 
respect to folding metal tables and chairs. On November 6, 2006, the 
Department issued a questionnaire to all producers in the PRC on the 
scope service list. On December 21, 2006, Cosco Home and Office 
Products (``Cosco''), a U.S. importer of subject merchandise, and PRC 
producers Feili Group (Fujian) Co., Ltd. and Feili Furniture 
Development Limited Quanzhou City (collectively ``Feili''), New-Tec 
Integration (Xiamen) Co., Ltd. (``New-Tec''), Dongguan Shichang Metals 
Factory Co. Ltd. (``Shichang''), and Lifetime Products (Xiamen), Inc. 
(``Lifetime''), submitted responses to the Department's questionnaire. 
On January 12, 2007, Lifetime, Meco and Cosco submitted comments on the 
questionnaire responses.
    On February 2, 2007, Meco submitted rebuttals to Cosco's comments 
on the questionnaire responses. On May 25, 2007 and June 1, 2007, the 
Department verified the information in Feili's and New-Tec's 
questionnaire responses, respectively. On August 13, 2007, the 
Department issued verification reports for Feili (``Feili Verification 
Report'') and New-Tec (``New-Tec Verification Report'').

Scope of the Order

    The products covered by this order consist of assembled and 
unassembled folding tables and folding chairs made primarily or 
exclusively from steel or other metal, as described below:
    1) Assembled and unassembled folding tables made primarily or 
exclusively from steel or other metal (folding metal tables). Folding 
metal tables include square, round, rectangular, and any other shapes 
with legs affixed with rivets, welds, or any other type of fastener, 
and which are made most commonly, but not exclusively, with a hardboard 
top covered with vinyl or fabric. Folding metal tables have legs that 
mechanically fold independently of one another, and not as a set. The 
subject merchandise is commonly, but not exclusively, packed singly, in 
multiple packs of the same item, or in five piece sets consisting of 
four chairs and one table. Specifically excluded from the scope of the 
order regarding folding metal tables are the following:
    Lawn furniture;
    Trays commonly referred to as ``TV trays;``
    Side tables;
    Child-sized tables;
    Portable counter sets consisting of rectangular tables 
36 high and matching stools; and,
    Banquet tables. A banquet table is a rectangular table with a 
plastic or laminated wood table top approximately 28 to 
36 wide by 48 to 96 long and with a 
set of folding legs at each end of the table. One set of legs is 
composed of two individual legs that are affixed together by one or 
more cross-braces using welds or fastening hardware. In contrast, 
folding metal tables have legs that mechanically fold independently of 
one another, and not as a set.
    2) Assembled and unassembled folding chairs made primarily or 
exclusively from steel or other metal (folding metal chairs). Folding 
metal chairs include chairs with one or more cross-braces, regardless 
of shape or size, affixed to the front and/or rear legs with rivets, 
welds or any other type of fastener. Folding metal chairs include: 
those that are made solely of steel or other metal; those that have a 
back pad, a seat pad, or both a back pad and a seat pad; and those that 
have seats or backs made of plastic or other materials. The subject 
merchandise is commonly, but not exclusively, packed singly, in 
multiple packs of the same item, or in five piece sets consisting of 
four chairs and one table. Specifically excluded from the scope of the 
order regarding folding metal chairs are the following:
    Folding metal chairs with a wooden back or seat, or both;
    Lawn furniture;
    Stools;
    Chairs with arms; and
    Child-sized chairs.
    The subject merchandise is currently classifiable under subheadings 
9401.71.0010, 9401.71.0030, 9401.79.0045, 9401.79.0050, 9403.20.015, 
9403.20.0030, 9403.70.8010, 9403.70.8020, and 9403.70.8030 of the 
Harmonized Tariff Schedule of the United States (``HTSUS''). Although 
the HTSUS subheadings are provided for convenience and customs 
purposes, the Department's written description of the merchandise is 
dispositive.
    Based on a request by RPA International Pty., Ltd. and RPS, LLC 
(collectively, ``RPA''), the Department ruled on January 13, 2003, that 
RPA's poly-fold metal folding chairs are within the scope of the order 
because they are identical in all material respects to the merchandise 
described in the petition, the initial investigation, and the 
determinations of the Secretary.
    On May 5, 2003, in response to a request by Staples, the Office 
Superstore Inc. (``Staples''), the Department issued a scope ruling 
that the chair component of Staples' ``Complete Office-To-Go,'' a 
folding chair with a tubular steel frame and a seat and back of 
plastic, with measurements of: height: 32.5 inches; width: 18.5 inches; 
and depth: 21.5 inches, is covered by the scope of the

[[Page 63685]]

order because it is identical in all material respects to the scope 
description in the order, but that the table component, with 
measurements of: width (table top): 43 inches; depth (table top): 
27.375 inches; and height: 34.875 inches, has legs that fold as a unit 
and meets the requirements for an exemption from the scope of the 
order.
    On September 7, 2004, the Department found that table styles 4600 
and 4606 produced by Lifetime Plastic Products Ltd. are within the 
scope of the order because these products have all of the components 
that constitute a folding metal table as described in the scope.
    On July 13, 2005, the Department issued a scope ruling determining 
that ``butterfly'' chairs are not within the scope of the antidumping 
duty order because they do not meet the physical description of 
merchandise covered by the scope of the order because they do not have 
cross braces affixed to the front and/or rear legs, and the seat and 
back is one piece of cloth that is not affixed to the frame with 
screws, rivets, welds, or any other type of fastener.
    On July 13, 2005, the Department issued a scope ruling determining 
that folding metal chairs imported by Korhani of America Inc. are 
within the scope of the antidumping duty order because the imported 
chair has a wooden seat which is padded with foam and covered with 
fabric or polyvinyl chloride, attached to the tubular steel seat frame 
with screws, and has cross braces affixed to its legs.
    On May 1, 2006, the Department issued a scope ruling determining 
that ``moon chairs'' are not included within the scope of the 
antidumping duty order because moon chairs have different physical 
characteristics, different uses, and are advertised differently that 
chairs covered by the scope of the order.
    On October 4, 2007, the Department issued a scope ruling 
determining that International E-Z Up Inc.'s (``E-Z Up'') Instant Work 
Bench is not included within the scope of the antidumping duty order 
because its legs and weight do not match the description of the folding 
metal tables in the scope of the order.
    On April 18, 2008, the Department issued a scope ruling determining 
that the VIKA Twofold 2-in-1 Workbench/Scaffold (``Twofold Workbench/
Scaffold'') imported by Ignite USA, LLC from the PRC is not included 
within the scope of the antidumping duty order because its rotating leg 
mechanism differs from the folding metal tables subject to the order, 
and its weight is twice as much as the expected maximum weight for 
folding metal tables within the scope of the order.

Legal Framework

    Section 781(c) of the Tariff Act of 1930 (``the Act''), dealing 
with minor alterations of merchandise, states that:
    (1) In general. The class or kind of merchandise subject to- (A) an 
investigation under this title, (B) an antidumping duty order issued 
under section 736, (C) a finding issued under the Antidumping Act, 
1921, or (D) a countervailing duty order issued under section 706 or 
section 303, shall include articles altered in form or appearance in 
minor respects (including raw agricultural products that have undergone 
minor processing), whether or not included in the same tariff 
classification. (2) Exception. Paragraph (1) shall not apply with 
respect to altered merchandise if the administering authority 
determines that it would be unnecessary to consider the altered 
merchandise within the scope of the investigation, order, or finding.
    Section 351.225(i) of the Department's regulations states that 
under section 781(c) of the Act, the Secretary may include within the 
scope of an antidumping or countervailing duty order articles altered 
in form or appearance in minor respects.

Criteria for Analysis

    While the statute is silent regarding what factors to consider in 
determining whether alterations are properly considered ``minor,'' the 
legislative history of this provision indicates that there are certain 
factors that should be considered before reaching an anti-circumvention 
determination. Previous anti-circumvention cases\1\ have relied on the 
factors listed in the Senate Finance Committee report on the Omnibus 
Trade and Competitiveness Act of 1988 (which amended the Tariff Act of 
1930 to include the anti-circumvention provisions contained in section 
781), which states:
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    \1\ See, e.g., Preliminary Determination of Circumvention of 
Antidumping Order; Cut-to-Length Carbon Steel Plate from Canada, 65 
FR 64926, 64929 (October 31, 2000) (unchanged in final results, 66 
FR 7617, 7618 (January 24, 2001)) (``Canadian Plate''); see also 
Final Results of Anti-Circumvention Review of Antidumping Order: 
Corrosion-Resistant Carbon Steel Flat Products From Japan, 68 FR 
33676, 33679 (June 5, 2003).
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    [lsqb]i[rsqb]n applying this provision, the Commerce Department 
should apply practical measurements regarding minor alterations, so 
that circumvention can be dealt with effectively, even where such 
alterations to an article technically transform it into a differently 
designated article. The Commerce Department should consider such 
criteria as the overall physical characteristics of the merchandise, 
the expectations of the ultimate users, the use of the merchandise, the 
channels of marketing and the cost of any modification relative to the 
total value of the imported products. Omnibus Trade Act of 1987, Report 
of the Senate Finance Committee, S. Rep. No. 71, 100th Cong., 1st 
Sess., at 100 (1987).
    In the case of an allegation of a ``minor alteration'' claim under 
section 781(c) of the Act, it is the Department's practice to look at 
the five factors listed in the Senate Finance Committee report to 
determine if circumvention exists in a particular case.\2\ Each anti-
circumvention review is highly dependent on the facts on the record, 
and must be analyzed in light of those specific facts. Thus, in anti-
circumvention cases we have historically analyzed several additional 
criteria to determine if circumvention of the order is taking place.\3\
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    \2\ See, e.g., Canadian Plate, 65 FR at 64929.
    \3\ See id, 65 FR at 64930-31.
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Analysis

    We organized the evidence and argument we received in the 
questionnaire responses, in the comments on those questionnaire 
responses, and at the verifications into the following categories:
    A. Whether Tables with Cross-Bars Were Expressly Excluded from the 
Scope;
    B. Senate Report Criteria; and
    C. Other Case-Specific Criteria.
    Based on our review of the record evidence and our analysis of the 
comments received, the Department determines that imports from the PRC 
of folding metal tables with legs connected by cross-bars, so that the 
legs fold in sets, and otherwise meet the description of in-scope 
merchandise, are within the class or kind of merchandise subject to the 
order on FMTCs from the PRC. For a complete discussion of the 
Department's analysis, see the Preliminary Analysis Memorandum for the 
Minor Alterations Anti-Circumvention Inquiry of the Antidumping Duty 
Order on Folding Metal Tables and Chairs from the People's Republic of 
China (``Preliminary Analysis Memorandum''), dated concurrently with 
this notice.
    As explained in the Preliminary Analysis Memorandum, we 
preliminarily determine that the folding metal tables with cross-bars 
at issue in this case are not expressly excluded

[[Page 63686]]

from the order. Also, regarding the Senate Report criteria, we 
preliminarily find that folding metal tables with legs connected by 
cross-bars have the same physical characteristics as the folding metal 
tables in the scope of the FMTCs order and the ITC Final Report except 
for the presence of cross-bars located near the table top. There are no 
significant differences in the expectations of the ultimate users, uses 
of the merchandise, and channels of marketing between folding metal 
tables with and without cross-bars. Furthermore, respondents conceded 
that the cost of adding cross-bars to tables in the course of 
production is negligible.
    With respect to other case-specific criteria, we preliminarily find 
that since the original investigation, respondents have shifted the 
majority of their production for U.S. customers away from folding metal 
tables without cross-bars to folding metal tables with cross-bars. The 
timing of this shift further indicates circumvention of the order by 
making a minor alteration.
    Although parties claim that the cross-bar increases the table's 
strength, there is no documentation supporting that claim. The fact 
that the bars are positioned near the top of the table, minimizing any 
potential benefit from their addition, weighs against finding that the 
cross-bars were added simply to strengthen the table. Moreover, these 
tables are not advertised as having cross-bars, nor are any claims made 
in the marketing materials that they are stronger or that they have no 
pinch points. Taken as a whole, this evidence leads to our 
determination that folding metal tables with legs with cross-bars are 
being produced and imported in circumvention of the antidumping duty 
order.
    As a result of our inquiry, we preliminarily determine that imports 
from the PRC of folding metal tables with legs connected by cross-bars, 
so that the legs fold in sets, and otherwise meeting the description of 
in-scope merchandise, are within the class or kind of merchandise 
subject to the order on FMTCs from the PRC. See Section 781(c) of the 
Act.

Suspension of Liquidation

    In accordance with section 351.225(l)(2) of the Department's 
regulations, for folding metal tables meeting the description of the 
folding metal tables described in the scope of the FMTCs order except 
that they have cross-bars connecting the legs, so that the legs fold in 
sets, we are directing U.S. Customs and Border Protection (``CBP'') to 
suspend liquidation of merchandise entered, or withdrawn from 
warehouse, for consumption on or after June 1, 2006, the date of the 
initiation of this inquiry. We will also instruct CBP to require a cash 
deposit of estimated duties at the applicable rates for each 
unliquidated entry of the product entered, or withdrawn from warehouse, 
for consumption on or after June 1, 2006, the date of initiation of 
this inquiry, in accordance with section 351.225(l)(2).

Public Comment

    Interested parties are invited to comment on the preliminary 
results and may submit case briefs and/or written comments within 20 
days of the publication of this notice. See 19 CFR 351.225(f)(1)(iii). 
Interested parties may file rebuttal briefs and rebuttals to written 
comments, limited to issues raised in such briefs or comments, no later 
than 10 days after the date on which the case briefs are due. See 19 
CFR 351.225(f)(1)(iii). Interested parties may request a hearing within 
20 days of the publication of this notice. Interested parties will be 
notified by the Department of the location and time of any hearing, if 
one is requested.
    This preliminary determination of circumvention is in accordance 
with section 781(c) of the Act and 19 CFR 351.225.

    Dated: October 20, 2008.
David M. Spooner,
Assistant Secretary for Import Administration.
{FR Doc. E8-25558 Filed 10-24-08; 8:45 am{time} 
BILLING CODE 3510-DS-S