Affirmative Final 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.

SUMMARY:

On April 23, 2010, the Department of Commerce (the Department) published in the Federal Register the initiation of an antidumping circumvention inquiry to determine if certain products were circumventing the antidumping duty order on certain cut-to-length carbon steel plate from the People's Republic of China (PRC). 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 * * * or to all U.S. imports” of certain cut-to-length carbon steel plate from the PRC. Id. at 21242. On February 22, 2011, the Department published its notice of affirmative preliminary determination of circumvention in which it found that imports from the 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. We gave interested parties an opportunity to comment on the Preliminary Determination, and received briefs and rebuttal briefs from various parties. After evaluating the comments submitted by parties, we find no basis for altering the preliminary determination referenced above. Therefore, we continue to determine that imports of the aforementioned merchandise are circumventing the order on cut-to-length carbon steel plate from the PRC.

FOR FURTHER INFORMATION CONTACT:

Steve Bezirganian or Robert James, AD/CVD Operations, Office 7, 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 22, 2011, the Department published its notice of affirmative preliminary determination of circumvention. See Preliminary Determination. The Department preliminarily determined that imports of certain cut-to-length plate (defined below) were circumventing the antidumping duty order on certain cut-to-length carbon steel plate from the PRC. The Department also directed U.S. Customs and Border Protection (CBP) to suspend liquidation of entries of such merchandise and require case deposits on said entries. Id. at 9752.

In accordance with 19 CFR 351.225(f)(3), interested parties were invited to comment on the preliminary determination within 20 days of publication of the Preliminary Determination. Id. On March 14, 2011, Wuyang and one of the U.S. importers of its merchandise, Stemcor USA Inc. (Stemcor), submitted a joint case brief. On March 14, 2011, ArcelorMittal USA LLC (ArcelorMittal USA) and Nucor Corporation (Nucor), both U.S. producers, each submitted a case brief. On March 24, 2011, Wuyang and Stemcor submitted a joint rebuttal brief. On March 24, 2011, ArcelorMittal USA and Nucor each submitted a rebuttal brief.

On March 14, 2011, Wuyang and Stemcor submitted a joint request for a hearing. On March 28, 2011, Wuyang and Stemcor withdrew their request for a hearing, and no hearing was held.

Scope of the Order

The product covered by the 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 the 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 the order is dispositive. Specifically excluded from subject merchandise within the scope of the 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.

Affirmative Final Determination of Circumvention

The Department conducted this circumvention inquiry in accordance with section 781(c) of the Tariff Act of 1930, as amended (the Act), which deals with minor alterations of merchandise. The Department noted in the Preliminary Determination the criteria typically used by the Department to make determinations in such inquiries (i.e., 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). See Preliminary Determination at 9750-51. The Department preliminarily determined that imports from the PRC of inquiry merchandise produced by Wuyang, regardless of exporter or importer, are within the class or kind of merchandise subject to the order on certain cut-to-length carbon steel plate from the PRC. The Department also preliminarily determined that its ruling should apply regardless of producer. In other words, all merchandise containing 0.0008 percent or more boron and otherwise meeting the description of the scope of the order, and not meeting the three distinguishing characteristics listed in the “Merchandise Subject to the Minor Alterations Antidumping Circumvention Proceeding” section above (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) are covered by the order.

Wuyang and Stemcor, ArcelorMittal USA, and Nucor each submitted case briefs and rebuttal briefs. The Department has analyzed the comments in its accompanying issues and decision memorandum and in a separate final analysis memorandum. See “Issues and Decision Memorandum for the Final Results of the Circumvention Inquiry of the Antidumping Duty Order on Certain Cut-to-Length Carbon Steel Plate from the People's Republic of China; Wuyang Iron and Steel Co., Ltd.” and “Final 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; Wuyang Iron and Steel Co., Ltd.,” respectively. The Department continues to find that it is appropriate to consider all plate with at least 0.0008 percent boron content and otherwise meeting the description of the scope to be covered by the order, unless the merchandise also possesses the three distinguishing characteristics referenced above. As noted in the Preliminary Determination, this ruling, like those in some other circumvention rulings, may be applied regardless of the manufacturers, exporters, or importers involved, and the Department considers it to be appropriate here to apply it on a countrywide basis, given that multiple parties have been found to be circumventing the order using the same general approach (i.e., inclusion of small, inconsequential amounts of an alloying element in order to change the tariff classification from non-alloy to alloy steel).

Continuation of Suspension of Liquidation

In accordance with 19 CFR 351.225(l)(3), we are directing CBP to continue to suspend liquidation of inquiry merchandise entered, or withdrawn from warehouse, for consumption on or after April 23, 2010, the date of publication of our initiation of this inquiry. See Preliminary Determination at 9752; see also 19 CFR 351.225(l)(2). We will also instruct CBP to continue 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, in accordance with 19 CFR 351.225(l)(3).

Notice to Parties

This notice also serves as a reminder to parties subject to administrative protective orders (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.

This affirmative final circumvention determination is published in accordance with section 781(b) of the Act and 19 CFR 351.225.