[Federal Register Volume 88, Number 223 (Tuesday, November 21, 2023)]
[Notices]
[Pages 81051-81053]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-25689]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-126; C-570-127]


Non-Refillable Steel Cylinders From the People's Republic of 
China: Affirmative Preliminary Determination of Circumvention of the 
Antidumping and Countervailing Duty Orders

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

SUMMARY: The U.S. Department of Commerce (Commerce) preliminarily 
determines that non-refillable steel cylinders with water capacities 
between 100 and 299 cubic inches produced in the People's Republic of 
China (China) and exported to the United States, are circumventing the 
antidumping duty (AD) and countervailing duty (CVD) orders on certain 
non-refillable steel cylinders (non-refillable cylinders) from China.

DATES: Applicable November 21, 2023.

FOR FURTHER INFORMATION CONTACT: Alex Cipolla, AD/CVD Operations, 
Office III, Enforcement and Compliance, International Trade 
Administration, U.S. Department of Commerce, 1401 Constitution Avenue 
NW, Washington, DC 20230; telephone: (202) 482-4956.

SUPPLEMENTARY INFORMATION:

Background

    On May 11, 2021, Commerce published in the Federal Register the AD 
and CVD orders on non-refillable cylinders from China.\1\ On June 1, 
2023, in response to a request from Worthington Industries (the 
petitioner),\2\ Commerce initiated a circumvention inquiry to determine 
whether imports of non-refillable cylinders meeting the requirements 
of, or produced to meet the requirements of, U.S. Department of 
Transportation (USDOT) Specification 39, TransportCanada Specification 
39M, or United Nations pressure receptacle standard ISO 11118 with a 
water capacity between 100 cubic inches (1.6 liters) and 299 cubic 
inches (4.9 liters) produced in China and exported to the United States 
are ``later-developed merchandise,'' and/or are ``altered in form or 
appearance in minor respects'' from in-scope merchandise such that they 
should be considered subject to the Orders.\3\ For a complete 
description of the events that followed initiation of this inquiry, see 
the Preliminary Decision Memorandum.\4\
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    \1\ See Certain Non-Refillable Steel Cylinders from the People's 
Republic of China: Amended Final Antidumping Duty Determination and 
Antidumping Duty and Countervailing Duty Orders, 86 FR 25839 (May 
11, 2021) (Orders).
    \2\ See Petitioner's Letter, ``Request for Circumvention Ruling 
Pursuant to Sections 781(c) and 781(d) of the Tariff Act of 1930,'' 
dated April 12, 2023.
    \3\ See Non-Refillable Steel Cylinders from the People's 
Republic of China: Initiation of Circumvention Inquiry of the 
Antidumping and Countervailing Duty Orders; Water Capacity Between 
100 and 299 Cubic Inches, 88 FR 35839 (June 1, 2023) (Initiation 
Notice). Although Commerce initiated a circumvention inquiry for 
merchandise ``altered in form or appearance in minor respects,'' 
pursuant to section 781(c) of the Tariff Act of 1930, as amended 
(the Act) and 19 CFR 351.226(j) and as ``later-developed 
merchandise,'' pursuant to section 781(d) of the Act and 19 CFR 
351.226(k), we are rescinding the portion of the circumvention 
inquiry relating to ``later-developed merchandise'' because of the 
affirmative preliminary determination with respect to circumvention 
under section 781(c) of the Act.
    \4\ See Memorandum, ``Preliminary Decision Memorandum for 
Circumvention Inquiry; 100-299 Cubic Inches NRSCs,'' dated 
concurrently with, and hereby adopted by, this notice (Preliminary 
Decision Memorandum).
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Scope of the Orders

    The products covered by the Orders are certain seamed (welded or 
brazed), non-refillable steel cylinders meeting the requirements of, or 
produced to meet the requirements of, U.S. Department of Transportation 
(USDOT) Specification 39, TransportCanada Specification 39M, or United 
Nations pressure receptacle standard ISO 11118. A full description of 
the scope of the

[[Page 81052]]

Orders is provided in the Preliminary Decision Memorandum.

Scope of the Circumvention Inquiry

    This circumvention inquiry covers non-refillable cylinders meeting 
the requirements of, or produced to meet the requirements of, USDOT 
Specification 39, TransportCanada Specification 39M, or United Nations 
pressure receptacle standard ISO 11118 with a water capacity between 
100 cubic inches (1.6 liters) and 299 cubic inches (4.9 liters) 
produced in China and exported to the United States.

Statutory and Regulatory 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 subject 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 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 
351.226(j), 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\ Each 
inquiry is highly dependent on the facts on the record and must be 
analyzed in light of those specific facts.\7\ Thus, along with the five 
factors enumerated above, Commerce may also consider the circumstances 
under which the products enter the United States, including, but not 
limited to, the timing of the entries and the quantity of merchandise 
entered during the circumvention review period.\8\
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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.; see also Deacero S.A. de C.V. v. United States, 817 
F.3d 1332 (Fed. Cir. 2016).
    \7\ See, e.g., Certain Uncoated Paper from Australia, Brazil, 
the People's Republic of China, Indonesia, and Portugal: Affirmative 
Preliminary Determination of Circumvention of the Antidumping and 
Countervailing Duty Orders, 82 FR 26778 (June 9, 2017), and 
accompanying Preliminary Decision Memorandum at ``IV. Statutory and 
Regulatory Framework.''
    \8\ Id.; see also, e.g., Affirmative Preliminary Determination 
of Circumvention of the Antidumping Duty Order on Certain Cut-to-
Length Steel Plate from the People's Republic of China, 74 FR 33991, 
33992-93 (July 14, 2009); Brass Sheet and Strip from West Germany; 
Negative Preliminary Determination of Circumvention of Antidumping 
Duty Order, 55 FR 32655 (August 10, 1990), unchanged in Brass Sheet 
and Strip from Germany; Negative Final Determination of 
Circumvention of Antidumping Duty Order, 56 FR 65884 (December 19, 
1991); and Small Diameter Graphite Electrodes from the People's 
Republic of China: Initiation of Anticircumvention Inquiry, 77 FR 
37873 (June 25, 2012).
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Preliminary Determination

    We preliminarily determine that non-refillable cylinders with water 
capacities between 100 and 299 cubic inches and non-refillable 
cylinders with water capacities between 300 and 1,526 cubic inches are 
not dissimilar in terms of overall physical characteristics of the 
merchandise, the expectations of the ultimate users, the use of the 
merchandise, channels of marketing, and the timing and circumstances 
under which Jinhua Sinoblue Machinery Manufacturing Co., Ltd. (Jinhua 
Sinoblue) and Ningbo Eagle Machinery & Technology Co., Ltd. (Ningbo 
Eagle) exported the non-refillable cylinders with water capacities 
between 100 and 299 cubic inches. Because we find that the merchandise 
subject to this inquiry is not dissimilar to subject merchandise, we 
preliminarily determine that the non-refillable cylinders at issue 
constitute merchandise ``altered in form or appearance in minor 
respects'' from in-scope merchandise, within the meaning of section 
781(c)(1) of the Act. Also, we preliminarily determine that the 
affirmative circumvention finding should be applied on a country-wide 
basis.
    For a full description of the methodology underlying our 
conclusions, see the Preliminary Decision Memorandum. The Preliminary 
Decision Memorandum is a public document and is 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 Preliminary Decision Memorandum can be accessed directly 
at https://access.trade.gov/public/FRNoticesListLayout.aspx. A list of 
the topics discussed in the Preliminary Decision Memorandum is attached 
as an appendix to this notice.

Suspension of Liquidation

    In accordance with 19 CFR 351.225(l)(2), we will direct U.S. 
Customs and Border Protection (CBP) to continue the suspension of 
liquidation of previously suspended entries and to suspend liquidation 
of non-refillable cylinders with water capacities between 100 and 299 
cubic inches produced in China and exported to the United States that 
are entered, or withdrawn from warehouse, for consumption on or after 
June 1, 2023 (i.e., the date of the initiation of this inquiry).\9\ 
Pursuant to 19 CFR 351.225(l)(2), we will also instruct CBP to require 
cash deposits of estimated duties equal to the AD and CVD rates in 
effect for non-refillable cylinders for each unliquidated entry of non-
refillable cylinders with water capacities between 100 and 299 cubic 
inches produced in China and exported to the United States that are 
entered, or withdrawn from warehouse, for consumption on or after June 
1, 2023. The suspension of liquidation instructions will remain in 
effect until further notice.
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    \9\ See Initiation Notice.
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Public Comment

    Interested parties are invited to comment on this preliminary 
determination of circumvention and may submit case briefs and/or 
written comments within 14 days of the publication of this notice. 
Rebuttal briefs, limited to issues raised in the case briefs, may be 
filed not later than seven days after the date on which case briefs are 
due.\10\ Pursuant to 19 CFR 351.226(f)(4), rebuttal briefs must be 
limited to issues raised in the case briefs.\11\ Parties who submit 
case briefs or rebuttal briefs in this proceeding are encouraged to 
submit with each argument: (1) a statement of the issue; (2) a brief 
summary of the argument; and (3) a table of authorities.\12\ Note that 
Commerce has amended certain of its

[[Page 81053]]

requirements pertaining to the service of documents in 19 CFR 
351.303(f).\13\
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    \10\ See 19 CFR 351.226(f)(4).
    \11\ See also 19 CFR 351.303 (for general filing requirements).
    \12\ See 19 CFR 351.309(c)(2) and (d)(2); see also 19 CFR 
351.303 (for general filing requirements).
    \13\ See Administrative Protective Order, Service, and Other 
Procedures in Antidumping and Countervailing Duty Proceedings; Final 
Rule, 88 FR 67069 (September 29, 2023).
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    Pursuant to 19 CFR 351.310(c), interested parties who wish to 
request a hearing, limited to issues raised in the case and rebuttal 
briefs, must submit a written request to the Assistant Secretary for 
Enforcement and Compliance, U.S. Department of Commerce, within 30 days 
after the publication of this notice. Requests should contain the 
party's name, address, telephone number, the number of participants, 
whether any participant is a foreign national, and a list of the issues 
to be discussed. If a request for a hearing is made, Commerce intends 
to hold the hearing at a time and date to be determined. Parties should 
confirm by telephone the date, time, and location of the hearing two 
days before the scheduled date.
    Unless the deadline is extended, Commerce intends to issue the 
final determination of this inquiry, including the results of its 
analysis of the issues raised in any written briefs, no later than 300 
days from the date of initiation of the inquiry, pursuant to 19 CFR 
351.226(e)(2). As such, the deadline to issue the final determination 
is currently March 27, 2024.

Notification to Interested Parties

    Commerce is issuing and publishing this affirmative preliminary 
determination of circumvention in accordance with sections 781(c) of 
the Act, 19 CFR 351.226(j), and 19 CFR 351.226(g)(1).

    Dated: November 14, 2023.
Abdelali Elouaradia,
Deputy Assistant Secretary for Enforcement and Compliance.

Appendix--List of Topics Discussed in the Preliminary Decision 
Memorandum

I. Summary
II. Background
III. Scope of the Orders
IV. Merchandise Subject to the Circumvention Inquiry
V. Statutory and Regulatory Framework
VI. Circumvention Analysis
VII. Preliminary Affirmative Determination of Circumvention
VIII. Recommendation

[FR Doc. 2023-25689 Filed 11-20-23; 8:45 am]
BILLING CODE 3510-DS-P