Light-Walled Welded Rectangular Carbon Steel Tubing From Taiwan: Preliminary Affirmative Determination of Circumvention of the Antidumping Duty Order

AGENCY:

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

SUMMARY:

The U.S. Department of Commerce (Commerce) preliminarily determines that imports of light-walled welded rectangular carbon steel tubing (LWR tubing) from Taiwan, completed in the Socialist Republic of Vietnam (Vietnam) using hot-rolled steel (HRS) produced in Taiwan, are circumventing the antidumping duty (AD) order on LWR tubing from Taiwan.

DATES:

Applicable April 12, 2023.

FOR FURTHER INFORMATION CONTACT:

Bryan Hansen or Christopher Williams, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482–3683 or (202) 482–5166, respectively.

SUPPLEMENTARY INFORMATION:

Background

On March 27, 1989, Commerce published in the Federal Register , the AD order on LWR tubing from Taiwan. On August 4, 2022, Commerce initiated a country-wide circumvention inquiry to determine whether certain imports of LWR tubing completed in Vietnam using HRS produced in Taiwan are circumventing the Order. On August 30, 2022, Commerce selected, in alphabetical order, Hoa Phat Steel Pipe Company Ltd (Hoa Phat) and Vina One Steel Manufacturing Corp (Vina One) as the mandatory respondents in this circumvention inquiry.

On December 9, 2022, Commerce extended the time limit for issuing the preliminary determination of this circumvention inquiry from January 3 to March 31, 2023. On March 31, 2023, Commerce extended the time limit for issuing the preliminary determination in this circumvention inquiry from March 31 to April 6, 2023. For a complete description of the events that followed the initiation of this circumvention inquiry, see the Preliminary Decision Memorandum.

Scope of the Order

The product covered by the Order is light-walled welded carbon steel pipe and tube of rectangular (including square) cross-section having a wall thickness of less than 0.156 inch. For a full description of the scope of the Order, see the Preliminary Decision Memorandum.

Merchandise Subject to the Circumvention Inquiry

This circumvention inquiry covers LWR tubing completed in Vietnam using Taiwan-origin HRS, which is 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. For a complete description of the methodology underlying the preliminary determination, see the Preliminary Decision Memorandum. A list of topics discussed in the Preliminary Decision Memorandum is included in Appendix I to this notice. 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.

Preliminary Circumvention Determination

As detailed in the Preliminary Decision Memorandum, Commerce preliminarily determines that LWR tubing completed in Vietnam, using Taiwan-origin HRS, and subsequently exported from Vietnam to the United States, is circumventing the Order on a country-wide basis. As a result, in accordance with section 781(b) of the Act, we preliminarily determine that the inquiry merchandise should be included within the scope of the Order. 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.

Use of Adverse Facts Available

Pursuant to section 776(a) of the Act, if the necessary information is not available on the record, or an interested party withholds requested information, fails to provide requested information by the deadline or in the form and manner requested, or significantly impeded a proceeding, Commerce shall use the facts otherwise available in reaching the applicable determination. Moreover, pursuant to section 776(b) of the Act, Commerce may use inferences adverse to the interests of an interested party in selecting from among the facts otherwise available if the party fails to cooperate by not acting to the best of its ability to provide requested information.

Commerce requested information from the two exporters that account for the largest volume of the subject merchandise from Vietnam during the inquiry period that Commerce determined can be reasonably examined for purposes of respondent selection. In these initial questionnaires, Commerce explained that, if the company to which Commerce issued the questionnaire fails to respond timely to the questionnaire, or fails to provide the requested information, Commerce may find that the company failed to cooperate by not acting to the best of its ability to comply with the request for information, and may use an inference that is adverse to the company's interests in selecting from the facts otherwise available. One of the mandatory respondents to which Commerce issued the initial questionnaire in this inquiry, i.e., Hoa Phat, received, but failed to timely respond to, Commerce's questionnaire.

Therefore, we preliminarily find that Hoa Phat failed to provide requested information by the deadline or in the form and manner requested, and significantly impeded this inquiry. Moreover, we find that this company failed to cooperate to the best of its ability to provide the requested information because it did not provide a timely response to Commerce's initial questionnaire. Consequently, we used adverse inferences with respect to Hoa Phat in selecting from among the facts otherwise available on the record, pursuant to sections 776(a) and (b) of the Act. For details regarding the adverse facts available used in this preliminary determination, see the Preliminary Decision Memorandum.

As detailed in the Preliminary Decision Memorandum, based on AFA, we preliminarily determine that Hoa Phat exported inquiry merchandise and that U.S. entries of that merchandise are circumventing the Order. Additionally, we are preliminarily precluding Hoa Phat from participating in the certification program that we are establishing for exports of LWR tubing from Vietnam.

U.S. entries of inquiry merchandise made on or after August 4, 2022, that are ineligible for certification based on the failure of Hoa Phat to cooperate, or for other reasons, shall remain subject to suspension of liquidation until final assessment instructions on those entries are issued, whether by automatic liquidation instructions, or by instructions pursuant to the final results of an administrative review.

Suspension of Liquidation and Cash Deposit Requirements

Based on the preliminary affirmative country-wide determination of circumvention for Taiwan, in accordance with 19 CFR 351.226(l)(2), 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 LWR tubing completed in Vietnam using Taiwan-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 .

LWR tubing produced in Vietnam from HRS that is not of Taiwan origin is not subject to this inquiry. Therefore, cash deposits are not required for such merchandise under the Taiwan Order. However, Commerce preliminarily finds that light-walled rectangular pipe and tube (LWRPT) completed in Vietnam using the People's Republic of China (China)-origin HRS is circumventing the AD and countervailing duty (CVD) orders on LWRPT from China, and LWRPT from Republic of Korea (Korea) completed in Vietnam using Korea-origin HRS is circumventing the AD order on LWRPT from Korea. Imports of such merchandise are subject to certification requirements, and cash deposits may be required.

If an importer imports LWR tubing from Vietnam and claims that the LWR tubing was not produced from Taiwan-origin HRS, in order to not be subject to the Taiwan Order cash deposit requirements, the importer and exporter are required to meet the certification and documentation requirements described in the “Certifications” and “Certification Requirements for Vietnam” sections, below.

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 rates applicable to the AD and CVD orders on LWRPT from China ( i.e., the AD rate established for the China-wide entity (255.07 percent) and the CVD rate established for all-others (15.28 percent) under the following third country case numbers: A–552–914–000 and C–552–915–000. This is to prevent evasion, given that the AD/CVD rates established for LWRPT from China are higher than the AD 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), 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 rate established for all-others (18.05 percent)) under the following third country case number: A–552–863–000. This is to prevent evasion, given that the AD rate established for LWR tubing from Taiwan is higher than the AD rate established for LWRPT from Korea.

Commerce established the following third country case number in the Automated Commercial Environment (ACE) for entries of LWR tubing produced in Vietnam using Taiwan-origin HRS: A–552–863–000. Commerce also established the following company-specific third country case number for Vina One, for which Commerce made an affirmative determination of circumvention, for entries of LWR tubing produced in Vietnam using Taiwan-origin HRS: A–552–863–001. The cash deposit rate will be the Taiwan AD all-others rate ( i.e., 18.05 percent).

For Hoa Phat, which will not be permitted to certify that its merchandise was not produced from Taiwan-origin HRS, Commerce will direct CBP to suspend liquidation and require a cash deposit at the AD/CVD rates established for LWRPT from China. Commerce established the following company-specific third country 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 duties.

Certifications

To administer the preliminary affirmative country-wide determination of circumvention, Commerce established importer and exporter certifications, which allow companies to certify that specific entries of LWR tubing from Vietnam are not subject to suspension of liquidation or the collection of cash deposits pursuant to this preliminary affirmative country-wide determination of circumvention because the merchandise is not made with Taiwan-origin 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 LWR tubing is not subject to suspension of liquidation or the collection of cash deposits because the merchandise is not made with Taiwan-origin 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 brokers, 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 LWR tubing 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 LWR tubing from Vietnam that was entered, or withdrawn from warehouse, for consumption 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 , where the entry has not been liquidated (and entries for which liquidation has not become final), the relevant certification should be completed and signed as soon as practicable, but not later than 45 days after the date of publication of this preliminary determination in the Federal Register . For such entries, importers and exporters each have the option to complete a blanket certification covering multiple entries, individual certifications for each entry, or a combination thereof. The exporter must provide the importer with a copy of the exporter certification within 45 days of the date of publication of this preliminary determination in the Federal Register .

For unliquidated entries (and entries for which liquidation has not become final) of LWR tubing that were declared as non-AD 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 type entries to AD type entries ( e.g., type 01 to type 03). Importers should report those AD type entries using the third country case numbers identified in the “Suspension of Liquidation and Cash Deposit Requirements” section, above. The importer should pay cash deposits on those entries consistent with the regulations governing post summary corrections that require payment of additional duties.

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

Interested parties may comment on these certification requirements, and on the certification language contained in Appendix II to this notice in their case briefs.

Verification

As provided in 19 CFR 351.307, Commerce may verify information relied upon in making its final determination.

Public Comment

Case briefs or other written comments should be submitted to the Assistant Secretary for Enforcement and Compliance no later than seven days after the date on which the last verification report is issued. Rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than seven days after the deadline for case briefs. 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.

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 date of publication of this notice. Requests should contain the party's name, address, and 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.

All submissions should be filed electronically via ACCESS. Alternative arrangements for manual filings must be made by contacting the official in charge at least 72 hours before the deadline. Note that Commerce has temporarily modified certain of its requirements for serving documents containing business proprietary information, until further notice.

U.S. International Trade Commission Notification

Commerce, consistent with section 781(e) of the Act, will notify the U.S. International Trade Commission (ITC) of this preliminary determination to include the merchandise subject to this circumvention inquiry within the Order. Pursuant to section 781(e) of the Act, the ITC may request consultations concerning Commerce's proposed inclusion of the inquiry merchandise. If, after consultations, the ITC believes that a significant injury issue is presented by the proposed inclusion, it will have 60 days from the date of notification by Commerce to provide written advice.

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)(1).

Appendix I

List of Topics Discussed in the Preliminary Decision Memorandum

I. Summary

II. Background

III. Scope of the Order

IV. Merchandise Subject to the Circumvention Inquiry

V. Period of Circumvention Inquiry

VI. Application of Facts Available and Use of Adverse Inference

VII. Affiliation and Collapsing

VIII. Statutory and Regulatory Framework for Circumvention Inquiry

IX. Analysis of Statutory Criteria for the Circumvention Inquiry

X. Summary of Analysis

XI. Verification

XII. Certification Process and Country-Wide Affirmative Determination of Circumvention

XIII. 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 the light-walled welded rectangular carbon steel tubing (LWR tubing) produced in 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 LWR tubing, 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 LWR tubing 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 LWR Tubing 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) used to produce the imported LWR tubing);

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:

Producer:

Producer's Address:

G. The LWR tubing covered by this certification does not contain HRS produced in Taiwan;

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 order on LWR tubing from Taiwan. 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 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;

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 .

N. 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 carbon steel tubing (LWR tubing) 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 LWR tubing 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 LWR tubing covered by this certification does not contain HRS produced in Taiwan;

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:

Location (Country) of Producer of HRS:

F. The LWR tubing 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 order on LWR tubing from Taiwan. 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}