[Federal Register Volume 74, Number 128 (Tuesday, July 7, 2009)]
[Notices]
[Pages 32118-32125]
From the Federal Register Online via the Government Publishing 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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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 http://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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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 http://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.
---------------------------------------------------------------------------

    \20\ See Expected Wages of Selected NME Countries (May 14, 2008) 
(available at http://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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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