[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