2011-27972. Steel Wire Garment Hangers From the People's Republic of China: Affirmative Final Determination of Circumvention of the Antidumping Duty Order

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

The Department of Commerce (“the Department”) continues to determine that steel wire garment hangers (“garment hangers”) exported by Angang Clothes Rack Manufacture Co., Ltd. (“Angang”) and Quyky Yanglei International Co., Ltd. (“Quyky”) are circumventing the antidumping duty order ^[1] on garment hangers from the People's Republic of China (“PRC”), pursuant to section 781(b) of the Tariff Act of 1930, as amended (“the Act”).

DATES:

Effective Date: October 28, 2011.

FOR FURTHER INFORMATION CONTACT:

Irene Gorelik, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: [phone].

SUPPLEMENTARY INFORMATION:

Background

On May 10, 2011, the Department published in the Federal Register the affirmative preliminary determination that garment hangers exported by Angang and Quyky are circumventing the Order on garment hangers from the PRC, as provided in section 781(b) of the Act.^[2]

On June 13, 2011, Petitioner ^[3] and Angang filed their case briefs. On June 20, 2011, Petitioner and Angang filed their rebuttal briefs. Quyky did not file either a case brief or rebuttal brief. Based on the timely filed request by Angang, the Department held a public hearing on June 28, 2011.^[4] On July 1, 2011, Angang filed a letter requesting the Department to strike portions of Petitioner's rebuttal brief dated June 20, 2011, alleging untimely filed new factual information and arguments were included.

Scope of the Antidumping Duty Order

The merchandise that is subject to the order is steel wire garment hangers, fabricated from carbon steel wire, whether or not galvanized or painted, whether or not coated with latex or epoxy or similar gripping materials, and/or whether or not fashioned with paper covers or capes (with or without printing) and/or nonslip features such as saddles or tubes. These products may also be referred to by a commercial designation, such as shirt, suit, strut, caped, or latex (industrial) hangers. Specifically excluded from the scope of the order are wooden, plastic, and other garment hangers that are not made of steel wire. Also excluded from the scope of the order are chrome-plated steel wire garment hangers with a diameter of 3.4 mm or greater. The products subject to the order are currently classified under Harmonized Tariff Schedule of the United States (“HTSUS”) subheadings 7326.20.0020, 7323.99.9060 and 7323.99.9080.

Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise is dispositive.

Scope of the Anti-Circumvention Inquiry

The products covered by this inquiry are garment hangers, as described in the “Scope of the Antidumping Duty Order” section above, that are exported from the Socialist Republic of Vietnam (“Vietnam”), but manufactured from PRC-origin, semi-finished hangers and completed in Vietnam with PRC-origin, paper attachments and other direct materials such as latex or glue.

While we acknowledge that Angang has repeatedly stated on the record that it also self-produces garment hangers from steel wire rod,^[5] the focus and intent of this proceeding is to determine whether the semi-finished hangers: (1) Are manufactured in the PRC; (2) are exported to Angang's facility in Vietnam for completion (by adding PRC-origin paper attachments, such as tubes, PRC-origin latex or glue); ^[6] and (3) then are exported by Angang to the United States as Vietnamese-origin garment hangers constitutes circumvention of the Order under section 781(b) of the Act.

Analysis of Comments Received

All issues raised in the post-preliminary comments by parties in this proceeding are addressed in the “Memorandum from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Ronald K. Lorentzen, Deputy Assistant Secretary for Import Administration, re: Steel Wire Garment Hangers from the People's Republic of China: Issues and Decision Memorandum for the Final Determination of the Anti-Circumvention Inquiry” (“Decision Memorandum”), dated concurrently with notice and hereby adopted by this notice.

A list of the issues which the parties raised and to which the Department responds in the Decision Memorandum is attached to this notice as Appendix I. The Decision Memorandum is a public document and is on file electronically via Import Administration's Antidumping and Countervailing Duty Centralized Electronic Service System (“IA ACCESS”). Access to IA ACCESS is available in the Central Records Unit, room 7046 of the main Department of Commerce building. In addition, a complete version of the Decision Memorandum can be accessed directly on the Internet at http://www.trade.gov/​ia/​. The signed Decision Memorandum and the electronic versions of the Decision Memorandum are identical in content.

Affirmative Final Determination of Circumvention

For the final determination, we continue to rely on the statutory criteria that we considered in making our Preliminary Determination.^[7] Based on our review of the record evidence and our analysis of the comments received, the Department continues to find that Quyky's and Angang's Vietnamese exports of garment hangers produced from PRC-origin, semi-finished hangers constitute circumvention of the Order and are properly considered to be within the same class or kind of merchandise subject to the Order on garment hangers from the PRC. For a complete discussion of the Department's analysis, see the Decision Memorandum.

Quyky

Facts Available

Section 776(a) of the Act requires the Department to rely on facts otherwise available if necessary information is not available on the record or an interested party or any other person: (A) withholds information requested by the Department; (B) fails to provide requested information by the deadlines for submission of the information or in the form and manner requested, subject to subsections (c)(1) and (e) of section 782 of the Act; (C) significantly impedes a proceeding; or (D) provides requested information, but the information cannot be verified as provided in section 782(i) of the Act.

As we stated in the Preliminary Determination, because Quyky failed to respond to any of the Department's requests for information, we found that it failed to cooperate to the best of its ability pursuant to sections 776(a)(2)(A) and (B) of the Act, and, that an adverse inference is warranted pursuant to section 776(b) of the Act.^[8] Further, as an adverse inference, the Department found that all of the garment hangers produced and/or exported by Quyky to the United States are circumventing the Order.^[9] Because no party has contested the substantial evidence on the record supporting the Department's preliminary determination for Quyky, we continue to find, using the stated adverse inference, that all of the garment hangers produced and/or exported by Quyky to the United States are circumventing the Order.

Angang

Statutory Provisions Regarding Circumvention

Section 781 of the Act addresses circumvention of antidumping or countervailing duty orders. With respect to merchandise assembled or completed in a third country, section 781(b)(1) of the Act provides that if: (A) The merchandise imported into the United States is of the same class or kind as any merchandise produced in a foreign country that is the subject of an antidumping duty order; (B) before importation into the United States, such imported merchandise is completed or assembled in a third country from merchandise which is subject to such an order or is produced in the foreign country with respect to which such order applies; (C) the process of assembly or completion in a third country is minor or insignificant; (D) the value of the merchandise produced in the foreign country to which the antidumping duty order applies is a significant portion of the total value of the merchandise exported to the United States; and (E) the Department determines that action is appropriate to prevent evasion of an order, then the Department, after taking into account any advice provided by the United States International Trade Commission, under section 781(e) of the Act, may include such imported merchandise within the scope of an order at any time an order is in effect.

In determining whether the process of assembly or completion in a third country is minor or insignificant under section 781(b)(1)(C) of the Act, section 781(b)(2) of the Act directs the Department to consider: (A) The level of investment in the third country; (B) the level of research and development in the third country; (C) the nature of the production process in the third country; (D) the extent of production facilities in the third country; and (E) whether the value of processing performed in the third country represents a small proportion of the value of the merchandise imported into the United States. However, none of these five factors, by itself, is controlling on the Department's determination of whether the process of assembly or completion in a third country is minor or insignificant.^[10] Accordingly, it is the Department's practice to evaluate each of these factors as they exist in the third country depending on the particular anti-circumvention inquiry.^[11]

Further, another step in the circumvention inquiry asks the Department, under section 781(b)(1)(D) of the Act, to discern whether the value of the merchandise produced in the foreign country to which an antidumping duty order applies is a significant portion of the total value of the merchandise exported to the United States. The Department must answer affirmatively to find circumvention.

Finally, section 781(b)(3) of the Act sets forth the factors to consider in determining whether to include merchandise assembled or completed in a third country in an antidumping duty order. Specifically, the Department shall take into account such factors as: (A) the pattern of trade, including sourcing patterns; (B) Whether the manufacturer or exporter of the merchandise is affiliated with the person who, in the third country, uses the merchandise to complete or assemble the merchandise which is subsequently imported into the United States; and (C) whether imports of the merchandise into the third country have increased after the initiation of the investigation which resulted in the issuance of an order.

In making a final determination in accordance with the criteria enumerated in section 781(b) of the Act as outlined above,^[12] we have continued to rely on the information obtained from Angang as well as the information placed on the record by the Department at the Preliminary Determination. Consequently, for the final determination, we continue to find that, based on the statutory factors above, Angang's process of converting the PRC-origin, semi-finished hangers in Vietnam and exporting them to the United States constitutes circumvention of the Order.

Summary of Analysis of Statutory Provisions

We considered all of the comments submitted by Angang and Petitioner, and find that, pursuant to section 781(b) of the Act, exports to the United States of garment hangers produced by Angang using PRC-origin, semi-finished hangers constitute circumvention of the Order.

(A) Whether Merchandise Imported Into the United States Is of the Same Class or Kind as Other Merchandise That Is Subject to the Order

As we stated in the Preliminary Determination, we reviewed the information provided by Angang in its questionnaire responses and found that the record evidence indicates that Angang's garment hangers, produced from PRC-origin, semi-finished hangers and exported to the United States meet the written description of the products subject to the Order.^[13] Further, we preliminarily found that the products identified and described in the product list are no different than those identified in the scope of the Order.^[14] Finally, we noted that Angang itself admitted that, from September 2008 through August 2010, it sold garment hangers that meet the scope of the Order.^[15] As the facts have not changed from the Preliminary Determination, we continue to find that the merchandise subject to this inquiry is the same class or kind of merchandise as that subject to the Order, pursuant to section 781(b)(1)(A) of the Act. The Department also preliminarily determined that, based on record evidence, Angang's affiliates in the PRC were the sole suppliers of the PRC-origin, semi-finished hangers, to which Angang added either PRC-origin powder coating or paint and paper attachments such as tubes and then exported this merchandise to the United States.^[16] The record clearly shows that Angang purchased semi-finished hangers from its PRC affiliates, further processed the unfinished hangers in Vietnam, packed, and exported the finished garment hangers to the United States as Vietnamese-origin.^[17] As the facts have not changed from the Preliminary Determination, we continue to find that the merchandise subject to this anti-circumvention inquiry was completed or assembled in Vietnam from PRC-origin merchandise which is subject to the Order, pursuant to section 781(b)(1)(B) of the Act.

(B) Whether, Before Importation Into the United States, Such Imported Merchandise Is Completed or Assembled in a Third Country From Merchandise Which Is Subject to the Order or Produced in the Foreign Country That Is Subject to the Order

Pursuant to section 781(b)(1)(C) of the Act, we preliminarily determined that the record evidence of this proceeding supported a finding that the process or completion of the PRC-origin, semi-finished hangers to finished garment hangers in Vietnam is minor or insignificant.^[18] Under section 781(b)(1)(C) of the Act, section 781(b)(2) of the Act directed us to address other criteria, which we found to have supported our preliminary finding that the processing or completion in Vietnam was minor or insignificant.^[19] First, pursuant to section 781(b)(2)(A) of the Act, we found that Angang's level of investment in Vietnam was minimal in terms of converting PRC-origin, semi-finished hangers into finished garment hangers.^[20] Second, pursuant to section 781(b)(2)(B) of the Act, we found that the lack of evidence of research and development (“R&D”) initiatives by Angang in the production of garment hangers shows that R&D is not a significant factor in Angang's completion of PRC-origin, semi-finished garment hangers in Vietnam.^[21] Third, pursuant to section 781(b)(2)(C) of the Act, we found that the portion of the overall production process of garment hangers in Vietnam conducted by Angang in assembling or completing the PRC-origin, semi-finished garment hangers into finished garment hangers is limited and minor compared to the PRC affiliates' share of the overall production process in the production of the semi-finished garment hangers and the other direct materials they supply to Angang to finish the semi-finished hangers in Vietnam.^[22] Fourth, pursuant to section 781(b)(2)(D) of the Act, we found that the extent of Angang's production facilities in Vietnam is minor with respect to completing PRC-origin, semi-finished hangers to finished garment hangers because the energy, labor, and capital equipment used by Angang in converting the PRC-origin, semi-finished hangers into finished garment hangers is not substantial in comparison to the materials, labor, energy, and capital equipment used by its PRC affiliates to produce the semi-finished garment hangers.^[23] Finally, pursuant to section 781(b)(2)(E) of the Act, we found that the value of the processing performed by Angang to convert the PRC-origin, semi-finished hangers into finished garment hangers represents a small proportion of the total value of the finished merchandise imported into the United States.^[24]

Therefore, we preliminarily found that, pursuant to sections 781(b)(2)(A)-(E) of the Act, Angang's processing operation to convert PRC-origin, semi-finished hangers into finished garment hangers in Vietnam is minor or insignificant.^[25] We based our preliminary decision as to whether the processing operation to convert PRC-origin, semi-finished hangers into finished garment hangers is minor or insignificant on the totality of the record evidence of this anti-circumvention inquiry and compared the relative information regarding the production processes for Angang and its PRC affiliates. For the final determination, we continue to find that, based on the totality of the record, each statutory criterion under section 781(b)(2) of the Act and all other factors point to the conclusion that Angang's process of converting the PRC-origin, semi-finished hangers in Vietnam was minor or insignificant and, consistent with our analysis in prior anti-circumvention inquiries.^[26]

(C) Whether the Value of the Merchandise Produced in the Foreign Country To Which the Order Applies Is a Significant Portion of the Total Value of the Merchandise Exported to the United States

Under section 781(b)(1)(D) of the Act, the value of the merchandise produced in the foreign country to which an antidumping duty order applies must be a significant portion of the total value of the merchandise exported to the United States in order to find circumvention. As discussed above, we found that the production process in the PRC manufactures the main inputs, that all the direct materials are sourced from the PRC, and that there exists only limited production processes in Vietnam, thereby evincing that a great majority of the value of the finished merchandise is based on the PRC-production of the semi-finished hangers and the other direct materials which are applied to those PRC-origin, semi-finished hangers in Vietnam.^[27] Based on our analysis and record evidence, we found that the value of the PRC-origin, semi-finished hangers taken as a whole constitutes a significant portion of the total value of the finished product ultimately exported to the United States.

(D) Other Factors To Consider

As previously noted, section 781(b)(3) of the Act instructs the Department to consider, in determining whether to include merchandise assembled or completed in a foreign country within the scope of an order, such factors as: pattern of trade, including sourcing patterns; affiliations between manufacturers or exporters of merchandise in the country subject to the order and the person who uses the merchandise to assemble or complete in the third country the merchandise that is exported to the United States; and whether imports into the third country of the merchandise described in section 781(b)(1)(B) of the Act have increased after the initiation of the investigation.

We preliminarily determined that: (1) The data related to patterns of trade in this case show that PRC exports have decreased significantly whereas Vietnamese exports have increased exponentially since the initiation of the less than fair value (“LTFV”) investigation; (2) Angang maintained an affiliation with two PRC companies; ^[28] and (3) Angang's imports of PRC-origin, semi-finished hangers increased after the initiation of the LTFV investigation and PRC exports of the same to Vietnam similarly increased after the initiation of the LTFV investigation.^[29] We found at that time,^[30] and continue to find in this final determination, that these facts and the related record evidence all support the conclusion that circumvention of the Order has occurred.

Affirmative Final Determination Summary

With respect to Quyky, we preliminarily found that Quyky circumvented the Order because it failed to provide the Department with any information at all, thus we are unable to distinguish between its imports or purchase of semi-finished hangers from the PRC for purposes other than assembly into merchandise covered by the Order. Consequently, because Quyky refused to comply with the Department's request for information, we continue to find that it failed to cooperate to the best of its ability and, therefore, that an adverse inference is warranted pursuant to section 776(b) of the Act. Accordingly, as stated above, as an adverse inference the Department preliminarily found that all of the garment hangers produced and/or exported by Quyky to the United States are circumventing the Order. Therefore, in light of our uncontested Preliminary Determination and the substantial record evidence supporting that decision, the Department will instruct U.S. Customs and Border Protection (“CBP”) to suspend liquidation on all entries of garment hangers produced and/or exported by Quyky that were entered, or withdrawn from warehouse, for consumption on or after the date of initiation of the anti-circumvention inquiry.

Further, with respect to Angang, we preliminarily found that Angang has circumvented the Order in accordance with section 781(b)(1) and (2) of the Act. Pursuant to section 781(b)(1) of the Act, we found that the merchandise sold in the United States is within the same class or kind of merchandise that is subject to the Order and was completed or assembled in a third country. Additionally, pursuant to section 781(b)(2), we found that the process or assembly of the PRC-origin semi-finished hangers into finished garment hangers by Angang is minor and insignificant. Furthermore, in accordance with section 781(b)(1)(D) of the Act, we found that the value of the merchandise produced in the PRC is a significant portion of the total value of the merchandise exported to the United States.

The record evidence continues to support an affirmative finding of circumvention in accordance with section 781(b)(1) and (2) of the Act. Moreover, we continue to find the factors required by section 781(b)(3) of the Act indicate that there is circumvention of the Order. Consequently, our statutory analysis leads us to find that there was circumvention of the Order as a result of Angang's assembly of the PRC-origin, semi-finished hangers into finished garment hangers in Vietnam for export to the United States, as discussed above. Therefore, in light of our final determination, the Department will instruct CBP to suspend liquidation on all entries of garment hangers produced and/or exported by Angang that were entered, or withdrawn from warehouse, for consumption on or after the date of initiation of the anti-circumvention inquiry. Should the Department conduct an administrative review of the Order in the future, both Quyky and Angang will have the opportunity to provide information related to their use of PRC-origin or self-produced garment hangers so that the Department may determine the appropriate assessment rate.

Continuation of Suspension of Liquidation

In accordance with section 733(d) of the Act, the Department will continue to direct CBP to suspend liquidation and to require a cash deposit of estimated duties, at the PRC-wide rate of 187.25 percent, on all unliquidated entries of garment hangers produced and/or exported by Angang and Quyky that were entered, or withdrawn from warehouse, for consumption on or after July 16, 2010, the date of initiation of the anti-circumvention inquiry.

In comments to the Department, Angang asked the Department (1) to revisit its determination to suspend liquidation of all of Angang's entries and (2) to allow certifications for Angang's future entries. Angang has provided conflicting statements on whether it could segregate PRC-origin, semi-finished hangers from the self-produced, semi-finished hangers in Vietnam,^[31] and record evidence supports the conclusion that Angang commingles the two groups of merchandise in a work-in-progress warehouse. Therefore, the Department declines to grant Angang's requests. For further discussion of this issue, see the Decision Memorandum.^[32]

As stated above, if requested, should the Department conduct an administrative review in the future, and determine in the context of that review that either Quyky or Angang have not produced for export garment hangers using PRC-origin, semi-finished hangers, the Department will consider a changed circumstances review pursuant to section 751(b) of the Act to determine if the continued suspension of all garment hangers produced by Quyky or Angang is warranted.

Notification to Interested Parties

This notice serves as the only reminder to parties subject to the administrative protective order (“APO”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305. 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 terms of an APO is a violation which is subject to sanction.

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

Dated: October 21, 2011.

Ronald K. Lorentzen,

Deputy Assistant Secretary for Import Administration.

Appendix I

Discussion of the Issues

Comment 1: Affirmative Preliminary Determination of Circumvention Regarding Quyky

Comment 2: Affirmative Preliminary Determination of Circumvention Regarding Angang

Comment 3: Appropriate Suspension of Liquidation of Angang's Exports

Comment 4: Whether To Require a Certification Process for Angang's Exports

Comment 5: Appropriate Rate To Assign to Angang

Footnotes

1.  See Notice of Antidumping Duty Order: Steel Wire Garment Hangers from the People's Republic of China, 73 FR 58111 (October 6, 2008) (“Order”).

2.  See Steel Wire Garment Hangers from the People's Republic of China: Affirmative Preliminary Determination of Circumvention of the Antidumping Duty Order and Extension of Final Determination, 76 FR 27007 (May 10, 2011) (“Preliminary Determination”).

3.  Petitioner is M&B Metal Products Co.

4.  During the public hearing, the Department noted that Angang provided untimely new factual information within its presentation, which was stricken from the record within the hearing transcript. See Memorandum to the File from Irene Gorelik, regarding; “revised transcript of the public hearing,” dated July 19, 2011.

5.  See Preliminary Determination, 76 FR at 27008. See also Angang's Questionnaire Response dated January 19, 2011, at 5; Angang's Questionnaire Response dated February 1, 2011, at Exhibit 9; and Angang's Comments dated December 22, 2010, at 2-5.

6.  Angang has reported that the direct materials applied to the PRC-origin, semi-finished hangers are also manufactured in, and supplied from, the PRC. See, e.g., Angang's Questionnaire Response dated November 19, 2010, at Exhibit 5; Angang's Questionnaire Response dated March 21, 2011, at 4.

7.  See Preliminary Determination, 76 FR at 27007.

8.  See Preliminary Determination, 76 FR at 27008.

9.  See id.

10.  See Statement of Administrative Action (“SAA”) accompanying the Uruguay Round Agreements Act, H. Doc. No. 103-316, at 893 (1994).

11.  See Certain Tissue Paper Products from the People's Republic of China: Affirmative Final Determination of Circumvention of the Antidumping Duty Order, 73 FR 57591, 57592 (October 3, 2008) (“Tissue Paper Anti-Circ 2008”).

12.  See Preliminary Determination, 76 FR at 27008-27015. Furthermore, Angang has not opposed the Department's preliminary finding that it has circumvented the Order, as noted in its case brief, where Angang stated that it “has not challenged the merits of the Department's affirmative preliminary determination with respect to wires formed in China.” See Angang's Case Brief, dated June 13, 2011 at 22.

13.  See Preliminary Determination, 76 FR at 27009.

14.  See id.

15.  See id.

16.  See id.

17.  See id.

18.  See id. at 27010.

19.  See id. at 27009-27012.

20.  See id. at 27010.

21.  See id.

22.  See id. at 27011.

23.  See id. at 27011-12.

24.  See id. at 27012.

25.  See id. at 27012-13.

26.  See, e.g., Anti-Circumvention Inquiry of the Antidumping and Countervailing Duty Orders on Certain Pasta From Italy: Affirmative Preliminary Determinations of Circumvention of Antidumping and Countervailing Duty Orders, 68 FR 46571, 46574-75 (August 6, 2003), unchanged in Anti-Circumvention Inquiry of the Antidumping and Countervailing Duty Orders on Certain Pasta from Italy: Affirmative Final Determinations of Circumvention of Antidumping and Countervailing Duty Orders, 68 FR 54888 (September 19, 2003); and Hot-Rolled Lead and Bismuth Carbon Steel Products from Germany and the United Kingdom; Negative Final Determinations of Circumvention of Antidumping and Countervailing Duty Orders, 64 FR 40336, 40338-40 (July 26, 1999).

27.  See Preliminary Determination, 76 FR at 27013.

28.  See “Memorandum to the File through Catherine Bertrand, Program Manager, Office 9 from Irene Gorelik, Senior Analyst, re; Circumvention Inquiry on Steel Wire Garment Hangers from the People's Republic of China: Proprietary Analysis of Certain Statutory Factors for Angang Clothes Rack Manufacture Co., Ltd. for the Preliminary Determination,” (“Angang Prelim Analysis Memo”), dated May 3, 2011. For the final determination, we continue to find that affiliation exists between Angang and these two PRC entities referenced in Angang Prelim Analysis Memorandum, pursuant to section 771(33) of the Act.

29.  See Preliminary Determination, 76 FR at 27013-14.

30.  See id. at 27014-15.

31.  See, e.g., Angang's Questionnaire Responses dated October 8, 2010, at Exhibit 1B; November 19, 2010, at 13; March 21, 2011, at 2; Angang's Case Brief dated June 13, 2011 at 4-9; see also Decision Memorandum at Comment 3.

32.  See Decision Memorandum at Comments 3, 4, and 5.