[Federal Register Volume 86, Number 178 (Friday, September 17, 2021)]
[Notices]
[Pages 51866-51868]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-20170]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-124, C-570-125]


Certain Vertical Shaft Engines Between 99cc and up to 225cc, and 
Parts Thereof, From the People's Republic of China: Initiation of Anti-
Circumvention Inquiry of Antidumping and Countervailing Duty Orders--
60cc up to 99cc Engines

AGENCY: Enforcement and Compliance, International Trade Administration, 
Department of Commerce.

SUMMARY: In response to allegations of circumvention from Briggs & 
Stratton, LLC, the Department of Commerce (Commerce) is initiating an 
anti-circumvention inquiry to determine whether imports of small 
vertical shaft engines with displacements between 60cc and up to 99cc 
(60cc up to 99cc engines) from the People's Republic of China (China) 
are circumventing the antidumping duty (AD) and countervailing duty 
(CVD) orders on certain vertical shaft engines between 99cc and up to 
225cc, and parts thereof (small vertical engines) from China.

DATES: Effective September 17, 2021.

FOR FURTHER INFORMATION CONTACT: Benjamin Luberda or Paul Litwin, AD/
CVD Operations, Office II, Enforcement and Compliance, International 
Trade Administration, U.S. Department of Commerce, 1401 Constitution 
Avenue NW, Washington, DC 20230; telephone: (202) 482-2185 and (202) 
482-6002, respectively.

SUPPLEMENTARY INFORMATION:

Background

    On July 30, 2021, Briggs & Stratton, LLC, the petitioner in the AD 
and CVD investigations, requested that Commerce initiate anti-
circumvention inquiries with regard to 60cc up to 99cc engines that are 
exported to the United States from China.\1\ The petitioner alleges 
that 60cc up to 99cc engines constitute merchandise altered in form or 
appearance in such minor respects that it should be included within the 
scope of the Orders \2\ pursuant to section 781(c) of the Tariff Act of 
1930, as amended (the Act) and 19 CFR 351.225(i). In addition, the 
petitioner alleges that 60cc up to 99cc engines are later-developed 
merchandise and should be included within the scope of the Orders 
pursuant to section 781(d) of the Act and 19 CFR 351.225(j). On August 
27, 2021, MTD Products Inc. (MTD), an original equipment manufacturer 
(OEM) and importer, submitted comments requesting that Commerce reject 
the petitioner's request to initiate an anti-circumvention inquiry.\3\ 
On September 3, 2021, the petitioner submitted comments on MTD's 
request to decline initiating an anti-circumvention inquiry.\4\
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    \1\ See Petitioner's Letter, ``Certain Vertical Shaft Engines 
Between 99cc and 225cc, and Parts Thereof from China/Request for 
Anti-Circumvention Inquiries Pursuant to Section 781(c) and/or 
781(d) of the Tariff Act of 1930,'' dated July 30, 2021 
(Circumvention Allegation).
    \2\ See Certain Vertical Shaft Engines Between 99cc and Up to 
225cc, and Parts Thereof from the People's Republic of China: 
Antidumping and Countervailing Duty Orders, 86 FR 23675 (May 4, 
2021) (Orders).
    \3\ See MTD's Letter, ``Request to Reject Anti-Circumvention 
Inquiry Request,'' dated August 27, 2021.
    \4\ See Petitioner's Letter, ``Comments on Request to Reject 
Anti-Circumvention Inquiry Request,'' dated September 3, 2021.
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Scope of the Orders

    The products subject to these Orders are small vertical engines 
from China. For a complete description of the scope of the Orders, see 
the appendix.

Merchandise Subject to the Anti-Circumvention Inquiry

    This anti-circumvention inquiry covers small vertical shaft engines 
with displacements between 60cc and up to 99cc produced in China and 
exported to the United States.

Legal Framework

    Section 781(c) of the Act provides that Commerce may find 
circumvention of an AD or CVD order when merchandise of the same class 
or kind as merchandise has been ``altered in form or appearance in 
minor respects . . . whether or not included in the same tariff 
classification.'' Section 781(c)(2) of the Act provides an exception 
that ``{p{time} aragraph 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 
{order{time} .''
    While the Act is silent as to 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 a circumvention 
determination. In conducting a circumvention inquiry

[[Page 51867]]

under section 781(c) of the Act, Commerce has generally relied upon 
``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.'' \5\ Concerning 
the allegation of minor alteration under section 781(c) of the Act and 
19 CFR 351.225(i), Commerce examines such factors as: (1) Overall 
physical characteristics; (2) expectations of ultimate users; (3) use 
of merchandise; (4) channels of marketing; and (5) cost of any 
modification relative to the value of the imported products.\6\
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    \5\ See Carbon and Certain Alloy Steel Wire Rod from Mexico: 
Initiation of Anti-Circumvention Inquiry of Antidumping Duty Order, 
83 FR 5405 (February 7, 2018) (citing S. Rep. No. 71, 100th Cong., 
1st Sess. 100 (1987)).
    \6\ Id.; and Deacero S.A. de C.V. v. United States, 817 F.3d 
1332 (Fed. Cir. 2016)
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    Section 781(d) of the Act provides that Commerce may initiate an 
anti-circumvention inquiry to determine whether merchandise developed 
after an AD or CVD investigation is within the scope of the order(s). 
In conducting later-developed merchandise inquiries under section 
781(d)(1) of the Act, Commerce will evaluate whether: (1) The general 
physical characteristics of the merchandise subject to the inquiry are 
the same as subject merchandise covered by the order(s); (2) the 
expectations of the ultimate purchasers of the merchandise subject to 
the inquiry are no different to the expectations of the ultimate 
purchasers of subject merchandise; (3) the ultimate use of the inquiry 
merchandise and subject merchandise are the same; (4) the channels of 
trade of both products are the same; and (5) there are any differences 
in the advertisement and display of both products.\7\ First, however, 
Commerce applies a commercial availability test to determine whether 
the merchandise subject to the inquiry was commercially available at 
the time of the investigation(s) (i.e., the product was present in the 
commercial market or the product was tested and ready for commercial 
production).\8\
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    \7\ See section 781(d)(1) of the Act.
    \8\ See Later-Developed Anticircumvention Inquiry of the 
Antidumping Duty Order on Petroleum Wax Candles from the People's 
Republic of China: Affirmative Preliminary Determination of 
Circumvention of Antidumping Duty Order, 71 FR 32033, 32035 (June 2, 
2006), unchanged in 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 (October 6, 
2006).
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Analysis

    After analyzing the record evidence and the petitioner's 
allegation, we determine that there is sufficient information to 
warrant the initiation of a minor alterations anti-circumvention 
inquiry, pursuant to section 781(c) of the Act and 19 CFR 351.225(i). 
However, we determine that initiation of a later-developed merchandise 
anti-circumvention inquiry, pursuant to section 781(d) of the Act and 
19 CFR 351.225(j), is not warranted. For a full discussion of the basis 
for our decision to initiate a minor alterations anti-circumvention 
inquiry, but not a later-developed merchandise anti-circumvention 
inquiry, see the Initiation Decision Memorandum.\9\ The Initiation 
Decision Memorandum is a public document, on file electronically via 
Enforcement and Compliance's Antidumping and Countervailing Duty 
Centralized Electronic Service System (ACCESS). ACCESS is available to 
registered users at https://access.trade.gov. In addition, a complete 
version of the Initiation Decision Memorandum can be accessed directly 
at http://enforcement.trade.gov/frn/.
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    \9\ See ``Decision Memorandum for Initiation of Anti-
Circumvention Inquiry,'' dated concurrently with and hereby adopted 
by this notice (Initiation Decision Memorandum).
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Conclusion

    Commerce will determine whether the merchandise subject to the 
inquiry (as described in the ``Merchandise Subject to the Anti-
Circumvention Inquiry'' section above) is circumventing the Orders such 
that it should be included within the scope of the Orders, pursuant to 
section 781(c) of the Act and 19 CFR 351.225(i).
    In accordance with 19 CFR 351.225(l)(2), if Commerce issues a 
preliminary affirmative determination, we will then instruct U.S. 
Customs and Border Protection to suspend liquidation and require a cash 
deposit of estimated duties, at the applicable rate, for each 
unliquidated entry of the merchandise at issue entered or withdrawn 
from warehouse for consumption on or after the date of initiation of 
the inquiry.
    Commerce will establish a schedule for questionnaires and comments 
on the issues related to the inquiry. In accordance with section 781(f) 
of the Act, to the maximum extent practicable, Commerce intends to 
issue its final determination within 300 days of the date of 
publication of this initiation.

Notification to Interested Parties

    This notice is published in accordance with sections 781(c) of the 
Act and 19 CFR 351.225(i).

    Dated: September 13, 2021.
Christian Marsh,
Acting Assistant Secretary for Enforcement and Compliance.

Appendix

Scope of the Orders

    The merchandise covered by these orders consists of spark-
ignited, non-road, vertical shaft engines, whether finished or 
unfinished, whether assembled or unassembled, whether mounted or 
unmounted, primarily for walk-behind lawn mowers. Engines meeting 
this physical description may also be for other non-hand-held 
outdoor power equipment, including but not limited to, pressure 
washers. The subject engines are spark ignition, single-cylinder, 
air cooled, internal combustion engines with vertical power take off 
shafts with a minimum displacement of 99 cubic centimeters (cc) and 
a maximum displacement of up to, but not including, 225cc. 
Typically, engines with displacements of this size generate gross 
power of between 1.95 kilowatts (kw) to 4.75 kw.
    Engines covered by this scope normally must comply with and be 
certified under Environmental Protection Agency (EPA) air pollution 
controls title 40, chapter I, subchapter U, part 1054 of the Code of 
Federal Regulations standards for small non-road spark-ignition 
engines and equipment. Engines that otherwise meet the physical 
description of the scope but are not certified under 40 CFR part 
1054 and are not certified under other parts of subchapter U of the 
EPA air pollution controls are not excluded from the scope of this 
proceeding. Engines that may be certified under both 40 CFR part 
1054 as well as other parts of subchapter U remain subject to the 
scope of this proceeding.
    Certain small vertical shaft engines, whether or not mounted on 
non-hand-held outdoor power equipment, including but not limited to 
walk-behind lawn mowers and pressure washers, are included in the 
scope. However, if a subject engine is imported mounted on such 
equipment, only the engine is covered by the scope. Subject 
merchandise includes certain small vertical shaft engines produced 
in the subject country whether mounted on outdoor power equipment in 
the subject country or in a third country. Subject engines are 
covered whether or not they are accompanied by other parts.
    For purposes of these orders, an unfinished engine covers at a 
minimum a sub-assembly comprised of, but not limited to, the 
following components: Crankcase, crankshaft, camshaft, piston(s), 
and connecting rod(s). Importation of these components together, 
whether assembled or unassembled, and whether or not accompanied by 
additional components such as a sump, carburetor spacer, cylinder 
head(s), valve train, or valve cover(s), constitutes an unfinished 
engine for purposes of these orders. The inclusion of other products 
such as spark plugs fitted into the

[[Page 51868]]

cylinder head or electrical devices (e.g., ignition coils) for 
synchronizing with the engine to supply tension current does not 
remove the product from the scope. The inclusion of any other 
components not identified as comprising the unfinished engine 
subassembly in a third country does not remove the engine from the 
scope.
    Specifically excluded from the scope of these orders are 
``Commercial'' or ``Heavy Commercial'' engines under 40 CFR 1054.107 
and 1054.135 that have (1) a displacement of 160 cc or greater, (2) 
a cast iron cylinder liner, (3) an automatic compression release, 
and (4) a muffler with at least three chambers and volume greater 
than 400 cc.
    The engines subject to these orders are predominantly classified 
in the Harmonized Tariff Schedule of the United States (HTSUS) at 
subheading 8407.90.1010. The engine subassemblies that are subject 
to this investigation enter under HTSUS 8409.91.9990. The mounted 
engines that are subject to this investigation enter under HTSUS 
8433.11.0050, 8433.11.0060, and 8424.30.9000. Engines subject to 
this investigation may also enter under HTSUS 8407.90.1020, 
8407.90.9040, and 8407.90.9060. The HTSUS subheadings are provided 
for convenience and customs purposes only, and the written 
description of the merchandise is dispositive.

[FR Doc. 2021-20170 Filed 9-16-21; 8:45 am]
BILLING CODE 3510-DS-P