Light-Walled Rectangular Pipe and Tube From the People's Republic of China: Final Affirmative Determination of Circumvention of the Antidumping Duty and Countervailing Duty Orders

AGENCY:

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

SUMMARY:

The U.S. Department of Commerce (Commerce) determines that imports of light-walled rectangular pipe and tube (LWRPT), completed in the Socialist Republic of Vietnam (Vietnam) using hot-rolled steel (HRS) produced in the People's Republic of China (China), are circumventing the antidumping duty (AD) and countervailing duty (CVD) orders on LWRPT from China.

DATES:

Applicable November 9, 2023.

FOR FURTHER INFORMATION CONTACT:

Reginald Anadio, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482–3166.

SUPPLEMENTARY INFORMATION:

Background

On August 5, 2008, Commerce published in the Federal Register the AD and CVD orders on LWRPT from China. On August 4, 2022, Commerce initiated a country-wide circumvention inquiry to determine whether certain imports of LWRPT completed in Vietnam using HRS produced in China are circumventing the Orders. On April 12, 2023, Commerce published in the Federal Register its Preliminary Determination that imports of LWRPT completed in Vietnam using HRS produced in China are circumventing the Orders.

On May 15, 2023, Commerce extended the deadline for the final determination of this circumvention inquiry to August 4, 2023. On July 20, 2023, Commerce further extended the deadline for the final determination in this circumvention inquiry to November 2, 2023. For a summary of events that occurred since the Preliminary Determination, as well as a full discussion of the issues raised by parties for consideration in the final determination, see the Issues and Decision Memorandum.

The Issues and 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 Issues and Decision Memorandum can be accessed directly at https://access.trade.gov/public/FRNoticesListLayout.aspx.

Scope of the Orders

The products covered by the Orders include certain quality light-walled steel pipe and tube, of rectangular (including square) cross section, having a wall thickness of less than 4 millimeters. For a full description of the scope of the Orders, see the Issues and Decision Memorandum.

Merchandise Subject to the Circumvention Inquiry

This circumvention inquiry covers LWRPT completed in Vietnam using China-origin HRS and subsequently exported from Vietnam to the United States (inquiry merchandise).

Methodology

Commerce is conducting this circumvention inquiry in accordance with section 781(b) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.226. See Preliminary Determination PDM for a full description of the methodology. We have continued to apply this methodology, without exception, and incorporate by reference this description of the methodology, for our final determination.

Analysis of Comments Received

All issues raised in the case and rebuttal briefs by parties in these inquiries are addressed in the Issues and Decision Memorandum. A list of the issues raised is attached to this notice at Appendix I.

Based on our analysis of the comments received from interested parties, we made no changes to the Preliminary Determination, except for the revisions to the certification language ( see Appendix II), which we have modified in response to comments to allow parties to also use the certifications when their shipments of LWRPT were not produced using HRS.

Final Circumvention Determination

As detailed in the Issues and Decision Memorandum, Commerce determines that LWRPT completed in Vietnam using China-origin HRS and subsequently exported from Vietnam to the United States is circumventing the Orders on a country-wide basis. As a result, in accordance with section 781(b) of the Act, we determine that the inquiry merchandise should be included within the scope of the Orders. See the “Suspension of Liquidation and Cash Deposit Requirements” section, below, for details regarding suspension of liquidation and cash deposit requirements. See the “Certifications” and “Certification Requirements for Vietnam” sections, below, for details regarding the use of certifications.

Suspension of Liquidation and Cash Deposit Requirements

Based on the affirmative country-wide determination of circumvention for Vietnam, in accordance with 19 CFR 351.226(l)(3), we will direct U.S. Customs and Border Protection (CBP) to suspend liquidation and require a cash deposit of estimated duties on unliquidated entries of LWRPT completed in Vietnam using China-origin HRS, that were entered, or withdrawn from warehouse, for consumption on or after August 4, 2022, the date of publication of the initiation of this circumvention inquiry in the Federal Register .

LWRPT produced in Vietnam from HRS that is not of China origin is not subject to this inquiry. Therefore, cash deposits are not required for such merchandise under the China Orders. However, Commerce finds that LWRPT completed in Vietnam using the Republic of Korea (Korea)-origin HRS is circumventing the AD order on LWRPT from Korea, and light-walled welded rectangular carbon steel tubing (LWR tubing) completed in Vietnam using Taiwan-origin HRS is circumventing the AD order on LWR tubing from Taiwan. Imports of such merchandise are subject to certification requirements, and cash deposits may be required.

If an importer imports LWRPT from Vietnam and claims that the LWRPT was not produced from China-origin HRS, or alternatively, claims that the LWRPT was produced using an input other than HRS, the importer and exporter are required to meet the certification and documentation requirements described in the “Certifications” and “Certification Requirements for Vietnam” sections, below, in order to not be subject to the China Orders cash deposit requirements.

See Appendix II for the revised importer and exporter certifications, which we have modified in response to comments to allow parties to also use the certifications when their shipments of LWRPT were not produced using HRS.

Where no certification is provided for an entry, and AD/CVD orders from three countries (China, Korea, or Taiwan) potentially apply to that entry, Commerce intends to instruct CBP to suspend the entry and collect cash deposits at the rate applicable to the AD and CVD orders on LWRPT from China ( i.e., the AD cash deposit rate established for the China-wide entity (255.07 percent) and the CVD cash deposit rate established for all-others (15.28 percent) under the following third country CBP case numbers: A–552–914–000 and C–552–915–000. This is to prevent evasion, given that the AD/CVD cash deposit rates established for LWRPT from China are higher than the AD cash deposit rates established for LWRPT from Korea and LWR tubing from Taiwan.

Where a certification is provided for the AD/CVD orders on LWRPT from China (stating that the merchandise was not produced using China-origin HRS or was produced using an input other than HRS), but no other certification is provided, then Commerce intends to instruct CBP to suspend the entry and collect cash deposits at the rate applicable to the Taiwan Order ( i.e., the AD cash deposit rate established for all-others (18.05 percent)) under the following third country CBP case number: A–552–863–000. This is to prevent evasion, given that the AD cash deposit rate established for LWR tubing from Taiwan is higher than the AD cash deposit rate established for LWRPT from Korea.

Commerce established the following third CBP country case number in the Automated Commercial Environment (ACE) for entries of LWRPT produced in Vietnam using Korea-origin HRS: A–552–859–000. The cash deposit rate will be the Korea AD all-others rate ( i.e., 15.79 percent).

For Hoa Phat, which will not be permitted to certify that its merchandise was not produced from China-origin HRS, Commerce will direct CBP, for all entries of LWRPT from Vietnam produced or exported by Hoa Phat, to suspend liquidation and require a cash deposit at the AD/CVD cash deposit rates established for LWRPT from China. Commerce established the following company-specific third country CBP case numbers for Hoa Phat: A–552–914–001 and C–552–915–001.

These suspension of liquidation instructions will remain in effect until further notice.

Certified Entries

Entries for which the importer and exporter have met the certification requirements described below and in Appendix II to this notice will not be subject to suspension of liquidation, or the cash deposit requirements described above. Failure to comply with the applicable requisite certification requirements may result in the merchandise being subject to AD and CVD duties.

Certifications

To administer the country-wide affirmative determination of circumvention, Commerce established importer and exporter certifications which allow companies to certify that specific entries of LWRPT from Vietnam are not subject to suspension of liquidation or the collection of cash deposits pursuant to this country-wide affirmative determination of circumvention because the merchandise was not made with China-origin HRS or was made with an input other than HRS ( see Appendix II to this notice). Because Hoa Phat was non-cooperative, it is not eligible to use the certification described above.

Importers and exporters that claim that the entry of LWRPT is not subject to suspension of liquidation or the collection of cash deposits because the merchandise was not made with China-origin HRS or was made with an input other than HRS must complete the applicable certification and meet the certification and documentation requirements described below, as well as the requirements identified in the applicable certification.

Certification Requirements for Vietnam

Importers are required to complete and maintain the applicable importer certification, and maintain a copy of the applicable exporter certification, and retain all supporting documentation for both certifications. With the exception of the entries described below, the importer certification must be completed, signed, and dated by the time the entry summary is filed for the relevant entry. The importer, or the importer's agent, must submit both the importer's certification and the exporter's certification to CBP as part of the entry process by uploading them into the document imaging system (DIS) in ACE. Where the importer uses a broker to facilitate the entry process, the importer should obtain the entry summary number from the broker. Agents of the importer, such as a broker, however, are not permitted to certify on behalf of the importer.

Exporters are required to complete and maintain the applicable exporter certification and provide the importer with a copy of that certification and all supporting documentation ( e.g., invoice, purchase order, production records, etc.). With the exception of the entries described below, the exporter certification must be completed, signed, and dated by the time of shipment of the relevant entries. The exporter certification should be completed by the party selling the LWRPT that was manufactured in Vietnam to the United States.

Additionally, the claims made in the certifications and any supporting documentation are subject to verification by Commerce and/or CBP. Importers and exporters are required to maintain the certifications and supporting documentation until the later of: (1) the date that is five years after the latest entry date of the entries covered by the certification; or (2) the date that is three years after the conclusion of any litigation in United States courts regarding such entries.

For all LWRPT from Vietnam that was entered, or withdrawn from warehouse, for consumption during the period August 4, 2022 (the date of initiation of this circumvention inquiry), through the date of publication of the Preliminary Determination in the Federal Register , where the entry has not been liquidated (and entries for which liquidation has not become final), the relevant certification should already be complete and signed.

For unliquidated entries (and entries for which liquidation has not become final) of LWRPT that were declared as non-AD/CVD type entries ( e.g., type 01) and entered, or withdrawn from warehouse, for consumption in the United States during the period August 4, 2022 (the date of initiation of these circumvention inquiries), through the date of publication of the Preliminary Determination in the Federal Register , for which none of the above certifications may be made, importers must file a Post Summary Correction with CBP, in accordance with CBP's regulations, regarding conversion of such entries from non-AD/CVD type entries to AD/CVD type entries ( e.g., type 01 to type 03). Importers should report those AD/CVD type entries using the third country CBP case numbers identified in the “Suspension of Liquidation and Cash Deposit Requirements” section, above. The importer should post cash deposits on those entries consistent with the regulations governing post summary corrections that require payment of additional duties, including AD/CVD duties.

If it is determined that an importer or exporter has not met the certification and related documentation requirements for certain entries, Commerce intends to instruct CBP to suspend, pursuant to this country-wide affirmative determination of circumvention and the Orders, all unliquidated entries for which these requirements were not met and require the importer to post applicable cash deposits equal to the rates noted above.

Opportunity To Request an Administrative Review

Each year during the anniversary month of the publication of an AD or CVD order, finding, or suspended investigation, an interested party, as defined in section 771(9) of the Act, may request, in accordance with 19 CFR 351.213, that Commerce conduct an administrative review of that AD or CVD order, finding, or suspended investigation. Interested parties who wish that Commerce conducts an administrative review should wait until Commerce announces via the Federal Register the next window during the anniversary month of the publication of the AD or CVD order to submit such requests. The anniversary month for these Orders is August.

Administrative Protective Order

This notice will serve as the only reminder to all parties subject to administrative protective order (APO) of their responsibility concerning the destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.

Notification to Interested Parties

This determination is issued and published in accordance with section 781(b) of the Act and 19 CFR 351.226(g)(2).

Appendix I

List of Topics Discussed in the Issues and Decision Memorandum

I. Summary

II. Background

III. Scope of the Orders

IV. Merchandise Subject to the Circumvention Inquiry

V. Period of Circumvention Inquiry

VI. Changes from the Preliminary Determination

VII. Discussion of the Issues

Comment 1: Conflict Regarding the Timing of Certification Requirements

Comment 2: Clarification in the Certification and Cash Deposit Instructions Concerning the Inclusion of HRS Further Processed in Vietnam Through a Cold-Rolling or Galvanizing Process

Comment 3: Whether Commerce's Denial of Hoa Phat's Extension Request Was an Abuse of Discretion

Comment 4: Whether Commerce Lacks Statutory Authority to Deny Hoa Phat a Certification Process, and the Selection of the AFA Rate

Comment 5: Commerce Must Detail the Process for Correct Cash Deposit and Liquidation for Entries Produced or Exported by Hoa Phat

Comment 6: Commerce Must Clarify the Suspension of Liquidation and Cash Deposit Requirements

Comment 7: Whether the Production of Pipe from Imported HRS Constitutes “Assembly or Completion” Within the Meaning of the Statute

Comment 8: Whether producers of LWRPT with Input Material Other Than HRS Are Subject to the Inquiry or Any of the Requirements Imposed by Commerce's Determination

Comment 9: Whether Commerce's Determination That Vina One Is Circumventing the Taiwan Order Is in Accordance with Law When There Is Insufficient Record Evidence to Show All Statutory Factors Are Met

Comment 10: Whether Vina One's Process of Finishing LWRPT in Vietnam from HRS Manufactured in China Is Minor and Insignificant Pursuant to Sections 781(b)(2)(A), (C) and (D) of the Act

Comment 11: Whether the Production Process of LWRPT from HRS Is Minor or Insignificant Pursuant to Section 781(b)(2) of the Act, Exclusion of Non-Chinese-Origin Inputs

Comment 12: Whether Commerce Properly Considered the Pattern of Trade and Sourcing

Comment 13: Whether Affiliations Indicate that Action is Not Appropriate to Prevent Circumvention of the Orders Under Section 781(b)(1)(E) of the Act

Comment 14: Whether HRS Imports from China and Taiwan Indicate that Action Is Not Appropriate to Prevent Evasion of the Orders Under Section 781(b)(1)(E) of the Act

Comment 15: Whether Commerce Should Apply Affirmative Circumvention Findings On a Country-Wide Basis

VIII. Recommendation

Appendix II

1. Certifications

Importer Certification

I hereby certify that:

A. My name is {IMPORTING COMPANY OFFICIAL'S NAME} and I am an official of {IMPORTING COMPANY}, located at {ADDRESS OF IMPORTING COMPANY};

B. I have direct personal knowledge of the facts regarding the importation into the Customs territory of the United States of light-walled rectangular pipe and tube (LWRPT) produced in the Socialist Republic of Vietnam that entered under entry summary number(s), identified below, and are covered by this certification. “Direct personal knowledge” refers to facts the certifying party is expected to have in its own records. For example, the importer should have direct personal knowledge of the importation of LWRPT, including the exporter's and/or foreign seller's identity and location;

C. If the importer is acting on behalf of the first U.S. customer, include the following sentence as paragraph C of this certification:

The LWRPT covered by this certification was imported by {IMPORTING COMPANY} on behalf of {U.S. CUSTOMER}, located at {ADDRESS OF U.S. CUSTOMER};

If the importer is not acting on behalf of the first U.S. customer, include the following sentence as paragraph C of this certification:

{NAME OF IMPORTING COMPANY} is not acting on behalf of the first U.S. customer.

D. The LWRPT covered by this certification was shipped to {NAME OF PARTY IN THE UNITED STATES TO WHOM THE MERCHANDISE WAS FIRST SHIPPED}, located at {U.S. ADDRESS TO WHICH MERCHANDISE WAS SHIPPED}.

E. I have personal knowledge of the facts regarding the production of the imported products covered by this certification. “Personal knowledge” includes facts obtained from another party, ( e.g., correspondence received by the importer (or exporter) from the producer regarding the source of hot-rolled steel (HRS) or an input other than HRS used to produce the imported LWRPT);

F. This certification applies to the following entries (repeat this block as many times as necessary):

Entry Summary #:

Entry Summary Line Item #:

Foreign Seller:

Foreign Seller's Address:

Foreign Seller's Invoice #:

Foreign Seller's Invoice Line Item #:

Country of Origin of HRS: State “N/A” for “Country of Origin of HRS” if the LWRPT covered by this certification was produced using inputs other than HRS.

Producer:

Producer's Address:

G. The LWRPT covered by this certification does not contain HRS produced in the People's Republic of China (China);

H. I understand that {IMPORTING COMPANY} is required to maintain a copy of this certification and sufficient documentation supporting this certification ( i.e., documents maintained in the normal course of business, or documents obtained by the certifying party, for example, certificates of origin, product data sheets, mill test reports, productions records, invoices, etc.) until the later of: (1) the date that is five years after the date of the latest entry covered by the certification; or (2) the date that is three years after the conclusion of any litigation in the United States courts regarding such entries;

I. I understand that {IMPORTING COMPANY} is required to maintain a copy of the exporter's certification (attesting to the production and/or exportation of the imported merchandise identified above), and any supporting documentation provided to the importer by the exporter, until the later of: (1) the date that is five years after the date of the latest entry covered by the certification; or (2) the date that is three years after the conclusion of any litigation in United States courts regarding such entries;

J. I understand that {IMPORTING COMPANY} is required to provide U.S. Customs and Border Protection (CBP) and/or the U.S. Department of Commerce (Commerce) with the importer certification, and any supporting documentation, and a copy of the exporter's certification, and any supporting documentation provided to the importer by the exporter, upon request of either agency;

K. I understand that the claims made herein, and the substantiating documentation, are subject to verification by CBP and/or Commerce;

L. I understand that failure to maintain the required certification and supporting documentation, or failure to substantiate the claims made herein, or not allowing CBP and/or Commerce to verify the claims made herein, may result in a de facto determination that all entries to which this certification applies are within the scope of the antidumping duty and countervailing duty orders on LWRPT from China. I understand that such finding will result in:

(i) suspension of liquidation of all unliquidated entries (and entries for which liquidation has not become final) for which these requirements were not met;

(ii) the importer being required to post the cash deposits determined by Commerce; and

(iii) the importer no longer being allowed to participate in the certification process.

M. I understand that agents of the importer, such as brokers, are not permitted to make this certification;

N. This certification was completed and signed on, or prior to, the date of the entry summary if the entry date is more than 14 days after the date of publication of the notice of Commerce's preliminary determination of circumvention in the Federal Register . If the entry date is on or before the 14th day after the date of publication of the notice of Commerce's preliminary determination of circumvention in the Federal Register , this certification was completed and signed by no later than 45 days after publication of the notice of Commerce's preliminary determination of circumvention in the Federal Register .

O. I am aware that U.S. law (including, but not limited to, 18 U.S.C. 1001) imposes criminal sanctions on individuals who knowingly and willfully make material false statements to the U.S. government.

Signature

{NAME OF COMPANY OFFICIAL}

{TITLE OF COMPANY OFFICIAL}

{DATE}

Exporter Certification

The party that made the sale to the United States should fill out the exporter certification.

I hereby certify that:

A. My name is {COMPANY OFFICIAL'S NAME} and I am an official of {NAME OF FOREIGN COMPANY THAT MADE THE SALE TO THE UNITED STATES}; located at {ADDRESS OF FOREIGN COMPANY THAT MADE THE SALE TO THE UNITED STATES};

B. I have direct personal knowledge of the facts regarding the production and exportation of the light-walled welded rectangular pipe and tube (LWRPT) for which sales are identified below. “Direct personal knowledge” refers to facts the certifying party is expected to have in its own records. For example, an exporter should have direct personal knowledge of the producer's identity and location;

C. The LWRPT covered by this certification was shipped to {NAME OF PARTY IN THE UNITED STATES TO WHOM MERCHANDISE WAS FIRST SHIPPED}, located at {U.S. ADDRESS TO WHICH MERCHANDISE WAS SHIPPED};

D. The LWRPT covered by this certification does not contain HRS produced in the People's Republic of China (China);

E. This certification applies to the following sales to {NAME OF U.S. CUSTOMER}, located at {ADDRESS OF U.S. CUSTOMER} (repeat this block as many times as necessary):

Foreign Seller's Invoice # to U.S. Customer:

Foreign Seller's Invoice to U.S. Customer Line item #:

Producer Name:

Producer's Address:

Producer's Invoice # to Foreign Seller: ( If the foreign seller and the producer are the same party, put NA here.)

Name of Producer of HRS: State “N/A” if the producer did not use HRS in the production of the LWRPT.

Location (Country) of Producer of HRS: State “N/A” if the producer did not use HRS in the production of LWRPT.

F. The LWRPT covered by this certification was shipped to {NAME OF U.S. PARTY TO WHOM MERCHANDISE WAS SHIPPED}, located at {U.S. ADDRESS TO WHICH MERCHANDISE WAS SHIPPED};

G. I understand that {NAME OF FOREIGN COMPANY THAT MADE THE SALE TO THE UNITED STATES} is required to maintain a copy of this certification and sufficient documentation supporting this certification ( i.e., documents maintained in the normal course of business, or documents obtained by the certifying party, for example, product data sheets, mill test reports, productions records, invoices, etc.) until the later of: (1) the date that is five years after the latest date of the entries covered by the certification; or (2) the date that is three years after the conclusion of any litigation in the United States courts regarding such entries;

H. I understand that {NAME OF FOREIGN COMPANY THAT MADE THE SALE TO THE UNITED STATES} is required to provide the U.S. importer with a copy of this certification and is required to provide U.S. Customs and Border Protection (CBP) and/or the U.S. Department of Commerce (Commerce) with this certification, and any supporting documents, upon request of either agency;

I. I understand that the claims made herein, and the substantiating documentation, are subject to verification by CBP and/or Commerce;

J. I understand that failure to maintain the required certification and supporting documentation, or failure to substantiate the claims made herein, or not allowing CBP and/or Commerce to verify the claims made herein, may result in a de facto determination that all sales to which this certification applies are within the scope of the antidumping duty and countervailing duty orders on LWRPT from China. I understand that such a finding will result in:

(i) suspension of all unliquidated entries (and entries for which liquidation has not become final) for which these requirements were not met;

(ii) the importer being required to post the cash deposits determined by Commerce; and

(iii) the seller/exporter no longer being allowed to participate in the certification process.

K. I understand that agents of the seller/exporter, such as freight forwarding companies or brokers, are not permitted to make this certification.

L. This certification was completed and signed, and a copy of the certification was provided to the importer, on, or prior to, the date of shipment if the shipment date is more than 14 days after the date of publication of the notice of Commerce's preliminary determination of circumvention in the Federal Register . If the shipment date is on or before the 14th day after the date of publication of the notice of Commerce's preliminary determination of circumvention in the Federal Register , this certification was completed and signed, and a copy of the certification was provided to the importer, by no later than 45 days after publication of the notice of Commerce's preliminary determination of circumvention in the Federal Register ; and

M. I am aware that U.S. law (including, but not limited to, 18 U.S.C. 1001) imposes criminal sanctions on individuals who knowingly and willfully make material false statements to the U.S. government.

Signature

{NAME OF COMPANY OFFICIAL}

{TITLE OF COMPANY OFFICIAL}

{DATE}