[Federal Register Volume 76, Number 35 (Tuesday, February 22, 2011)]
[Notices]
[Pages 9749-9752]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-3889]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-849]
Affirmative Preliminary Determination of Circumvention of the
Antidumping Duty Order on Certain Cut-to-Length Carbon Steel Plate 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 certain cut-to-length carbon steel plate
products with 0.0008 percent or more boron, by weight, regardless of
the producer or exporter or importer of the merchandise, and otherwise
meeting the description of in-scope merchandise, are within the class
or kind of merchandise subject to the order on certain cut-to-length
carbon steel plate from the PRC.
[[Page 9750]]
DATES: Effective Date: February 22, 2011.
FOR FURTHER INFORMATION CONTACT: Steve Bezirganian or Robert James,
Import Administration, International Trade Administration, U.S.
Department of Commerce, 14th Street and Constitution Avenue, NW.,
Washington, DC 20230; telephone: (202) 482-1131 or (202) 482-0649,
respectively.
SUPPLEMENTARY INFORMATION:
Background
On February 17, 2010, ArcelorMittal USA, Inc., Nucor Corporation,
SSAB N.A.D., Evraz Claymont Steel and Evraz Oregon Steel Mills
(collectively Domestic Producers) requested that the Department of
Commerce (the Department) make a final circumvention ruling with
respect to certain cut-to-length carbon steel plate produced by Wuyang
Iron and Steel Co., Ltd. (Wuyang), regardless of the exporter or
importer, or imported by Stemcor USA Inc. (Stemcor), regardless of the
producer or exporter, which contain 0.0008 percent or more, by weight,
of boron. The Department initiated an antidumping circumvention inquiry
pursuant to section 781(c) of the Tariff Act of 1930, as amended (the
Act). See Certain Cut-to-Length Carbon Steel Plate from the People's
Republic of China: Initiation of Antidumping Circumvention Inquiry, 75
FR 21241 (April 23, 2010) (Initiation Notice). That initiation
indicated the merchandise subject to the inquiry was produced by Wuyang
Iron and Steel Co., Ltd. (Wuyang), but also noted the Department
intended ``to address whether its circumvention ruling will apply to
particular producers, exporters and/or importers (e.g., Stemcor) or to
all U.S. imports'' of certain cut-to-length carbon steel plate from the
PRC. Id. at 21242.
On May 3, 2010, the Department issued a questionnaire to Wuyang. On
June 1, 2010, Wuyang submitted its response to that questionnaire. On
July 2, 2010, Nucor Corporation submitted comments on Wuyang's
questionnaire response. On July 22, 2010, Domestic Producers submitted
additional information they indicated is relevant to the inquiry. On
October 22, 2010, the Department issued a supplemental questionnaire to
Wuyang, and on November 23, 2010, Wuyang provided its response to that
supplemental questionnaire. On December 8, 2010, the Department issued
another supplemental questionnaire to Wuyang, and on December 16, 2010,
Wuyang provided its response to that supplemental questionnaire. SSAB
N.A.D., Evraz Claymont Steel and Evraz Oregon Steel Mills submitted
comments and new information on January 3, 2011. On January 21, 2011,
the following each submitted new information and/or comments: Wuyang,
Nucor, and ArcelorMittal USA, Inc.
Scope of the Order
The product covered by this order is certain cut-to-length carbon
steel plate from the People's Republic of China. Included in this
description is hot-rolled iron and non-alloy steel universal mill
plates (i.e., flat-rolled products rolled on four faces or in a closed
box pass, of a width exceeding 150 mm but not exceeding 1250 mm and of
a thickness of not less than 4 mm, not in coils and without patterns in
relief), of rectangular shape, neither clad, plated nor coated with
metal, whether or not painted, varnished, or coated with plastics or
other nonmetallic substances; and certain iron and non-alloy steel
flat-rolled products not in coils, of rectangular shape, hot-rolled,
neither clad, plated, nor coated with metal, whether or not painted,
varnished, or coated with plastics or other nonmetallic substances,
4.75 mm or more in thickness and of a width which exceeds 150 mm and
measures at least twice the thickness. Included as subject merchandise
in this order are flat-rolled products of nonrectangular cross-section
where such cross-section is achieved subsequent to the rolling process
(i.e., products which have been ``worked after rolling'')--for example,
products which have been bevelled or rounded at the edges. This
merchandise is currently classified in the Harmonized Tariff Schedule
of the United States (HTSUS) under item numbers 7208.40.3030,
7208.40.3060, 7208.51.0030, 7208.51.0045, 7208.51.0060, 7208.52.0000,
7208.53.0000, 7208.90.0000, 7210.70.3000, 7210.90.9000, 7211.13.0000,
7211.14.0030, 7211.14.0045, 7211.90.0000, 7212.40.1000, 7212.40.5000,
7212.50.0000. Although the HTSUS subheadings are provided for
convenience and customs purposes, the written description of the scope
of this order is dispositive. Specifically excluded from subject
merchandise within the scope of this order is grade X-70 steel plate.
Merchandise Subject to the Minor Alterations Antidumping Circumvention
Proceeding
The merchandise subject to this antidumping circumvention inquiry
(Inquiry Merchandise) consists of all merchandise produced by Wuyang
containing 0.0008 percent or more boron, by weight, and otherwise
meeting the requirements of the scope of the antidumping duty order as
listed under the ``Scope of the Order'' section above, with the
exception of merchandise meeting all of the following requirements:
aluminum level of 0.02 percent or greater, by weight; a ratio of 3.4 to
1 or greater, by weight, of titanium to nitrogen; and a hardenability
test (i.e., Jominy test) result indicating a boron factor of 1.8 or
greater. This merchandise is currently classified in the Harmonized
Tariff Schedule of the United States (HTSUS) under item numbers
7225.40.3050, 7225.99.0090, 7226.91.5000, and 7226.99.0180. Although
the HTSUS subheadings are provided for convenience and customs
purposes, the written description of Inquiry Merchandise is
dispositive.
Legal Framework
Section 781(c) of the Act, dealing with minor alterations of
merchandise, states: (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 there are certain
factors that should be considered before reaching a circumvention
determination. Previous circumvention cases \1\ have relied on the
[[Page 9751]]
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); Final Results of
Anti-Circumvention Review of Antidumping Order: Corrosion-Resistant
Carbon Steel Flat Products From Japan, 68 FR 33676, 33679 (June 5,
2003); and Affirmative Preliminary Determination of Circumvention of
the Antidumping Duty Order on Certain Cut-to-Length Carbon Steel
Plate from the People's Republic of China, 74 FR 33991 (July 14,
2009) (unchanged in final results, 74 FR 40565, 40566 (August 12,
2009)) (Tianjin Plate).
{i{time} 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.\2\
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\2\ Omnibus Trade Act of 1987, Report of the Senate Finance
Committee, S. Rep. No. 71, 100th Cong., 1st Sess., at 100 (1987)
(emphasis added).
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In the case of an allegation of a ``minor alteration'' 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 (Senate
Report Criteria) to determine if circumvention exists in a particular
case. See, e.g., Canadian Plate, 65 FR at 64929. In circumvention cases
we sometimes analyze additional criteria to determine if circumvention
of the order is taking place. Id. at 64930. These may be case-specific.
For example, in Canadian Plate additional factors analyzed included the
circumstances under which the products entered the United States, the
timing of the entries during the circumvention review period, and the
quantity of merchandise entered during the circumvention review period.
Id. at 64930-31. In a more recent circumvention case, the additional
factors analyzed included not only the timing of the entries during the
period, but also other factors, such as the input of customers in the
design phase. See Affirmative Preliminary Determination of
Circumvention of the Antidumping Duty Order on Folding Metal Tables and
Chairs from the People's Republic of China, 73 FR 63684 (October 27,
2008), unchanged in Affirmative Final Determination of Circumvention of
the Antidumping Duty Order on Folding Metal Tables and Chairs from the
People's Republic of China, 74 FR 20920 (May 6, 2009). Analysis
We examined the evidence and argument submitted by interested
parties in the course of this inquiry in the context of the Senate
Report Criteria and an additional factor, the timing of the entries
during the period.
Based on our review of the record evidence and our analysis of the
comments received, the Department preliminarily determines that imports
from the PRC of Inquiry Merchandise produced by Wuyang are within the
class or kind of merchandise subject to the order on certain cut-to-
length carbon steel plate from the PRC. For a complete discussion of
the Department's analysis, see the Preliminary Analysis Memorandum for
the Circumvention Inquiry of the Antidumping Duty Order on Certain Cut-
to-Length Carbon Steel Plate from the People's Republic of China, for
the Producer known as Wuyang Iron and Steel Co., Ltd. (Preliminary
Analysis Memorandum), dated concurrently with this notice.
As explained in the Preliminary Analysis Memorandum, we
preliminarily determine that the Inquiry Merchandise has the same
physical characteristics as products in the scope of the order on
certain cut-to-length carbon steel plate from the PRC and the ITC Final
Report except for the presence of boron in excess of 0.0008 percent, by
weight.\3\ We find no evidence of significant differences in the
physical characteristics, the expectations of the ultimate users, uses
of the merchandise, or channels of marketing between products in the
scope of the order and the Inquiry Merchandise. We find that the only
difference in the production process is the addition of the boron, and
the cost of such boron is insignificant. See Preliminary Analysis
Memorandum.
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\3\ Furthermore, Wuyang does not claim that the merchandise it
shipped meets the additional requirements that would exclude it from
this circumvention inquiry (i.e., aluminum level of 0.02 percent or
greater, by weight; a ratio of 3.4 to 1 or greater, by weight, of
titanium to nitrogen; and a hardenability test (i.e., Jominy test)
result indicating a boron factor of 1.8 or greater), and the
documentation on the record regarding the merchandise Wuyang
manufactured and sold to the United States does not indicate those
additional criteria were met.
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As a result of our inquiry, we preliminarily determine that imports
from the PRC of Inquiry Merchandise produced by Wuyang, regardless of
the exporter or the importer of the merchandise, are within the class
or kind of merchandise subject to the order on certain cut-to-length
carbon steel plate from the PRC. See section 781(c) of the Act.
Application of Ruling to Inquiry Merchandise Regardless of Producer
As noted above, the Department preliminarily finds Inquiry
Merchandise produced by Wuyang circumventing the order. The Department
reached a similar conclusion in its previous circumvention inquiry
involving cut-to-length carbon steel plate from the PRC, where the
Department found a producer and an importer circumventing the order.
See Tianjin Plate.\4\ In that case, three criteria were identified
that, collectively, and in conjunction with the presence of 0.0008
percent or more boron, by weight, distinguish the resulting merchandise
from merchandise covered by the scope of the order: aluminum level of
0.02 percent or greater, by weight; a ratio of 3.4 to 1 or greater, by
weight, of titanium to nitrogen; and a hardenability test (i.e., Jominy
test) result indicating a boron factor of 1.8 or greater. Those three
distinguishing criteria were identified in the Initiation Notice, and
no parties have suggested other objective criteria that would result in
merchandise with 0.0008 percent or more, by weight, of boron being
distinguishable from subject merchandise.
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\4\ Furthermore, such a conclusion was reached in another
proceeding involving plate products. See Canadian Plate.
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The Department indicated in the Initiation Notice that it would
consider applying the results of the current inquiry to Inquiry
Merchandise regardless of producer. See Initiation Notice. No parties
have commented on this. The current inquiry and Tianjin Plate
demonstrate that circumvention through use of boron has involved
multiple parties producing and importing different specifications of
plate. Therefore, the Department preliminarily determines that all
merchandise, regardless of producer, containing 0.0008 percent or more
boron and otherwise meeting the description of the scope, and not
meeting the three distinguishing criteria listed above, are covered by
the order. The Department has applied rulings in other circumvention
inquiries on a country-wide basis. See, e.g., Affirmative Final
Determination of Circumvention of the Antidumping Duty Order on Folding
Metal Tables and Chairs from the People's Republic of China, 74 FR
20920 (May 6, 2009), and Later-Developed Merchandise Anticircumvention
Inquiry of the Antidumping Duty Order on Petroleum Wax Candles from the
People's Republic of China: Affirmative Final Determination of
Circumvention of the Antidumping Duty Order, 71 FR 59075
[[Page 9752]]
(October 6, 2006). While we preliminarily determine that imports from
the PRC of Inquiry Merchandise are subject to the order on certain cut-
to-length carbon steel plate from the PRC, interested parties are not
precluded by this determination from applying for a ruling as to
whether a particular product is within the scope of the order. See 19
CFR 351.225(c).
Conclusion
As noted above, we preliminarily determine that imports from the
PRC of Inquiry Merchandise are subject to the order on certain cut-to-
length carbon steel plate from the PRC. Also as noted above, we
preliminarily determine that imports of such products are subject to
the order regardless of the producer.
Suspension of Liquidation
In accordance with section 351.225(l)(2) of the Department's
regulations, we are directing U.S. Customs and Border Protection (CBP)
to suspend liquidation of Inquiry Merchandise (regardless of producer)
entered, or withdrawn from warehouse, for consumption on or after April
23, 2010, 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 April 23, 2010,
the date of the initiation of this inquiry, in accordance with section
351.225(l)(2) of the Department's regulations.
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)(3).
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. Id.
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: February 14, 2011.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 2011-3889 Filed 2-18-11; 8:45 am]
BILLING CODE 3510-DS-P