2018-20609. Certain Hardwood Plywood Products From the People's Republic of China: Initiation of Anti-Circumvention Inquiry on the Antidumping Duty and Countervailing Duty Orders

AGENCY:

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

SUMMARY:

In response to a request from the Coalition for Fair Trade in Hardwood Plywood (the petitioner), the Department of Commerce (Commerce) is initiating an anti-circumvention inquiry pursuant to section 781(d) of the Tariff Act of 1930, as amended (the Act), to determine whether certain plywood with face and back veneers of radiata and/or agathis pine that is circumventing the antidumping duty (AD) and countervailing duty (CVD) orders on certain hardwood plywood products from the People's Republic of China (China).

DATES:

Applicable September 21, 2018.

FOR FURTHER INFORMATION CONTACT:

Amanda Brings or Ryan Mullen, AD/CVD Operations, Office V, Enforcement & Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC, 20230; telephone: [phone] or [phone], respectively.

SUPPLEMENTARY INFORMATION:

Background

On January 4, 2018, Commerce published in the Federal Register AD and CVD Orders on certain hardwood plywood products from China.^[1] On June 26, 2018, the petitioner filed a request that Commerce conduct an anti-circumvention inquiry pursuant to section 781(d) of the Act with respect to certain plywood with a face and back veneer of radiata and/or agathis pine that: (1) Has a Toxic Substances Control Act (TSCA) or California Air Resources Board (CARB) label certifying that it is compliant with TSCA/CARB requirements; and (2) is made with a resin, the majority of which is comprised of one or more of the following three product types—urea formaldehyde, polyvinyl acetate, and/or soy.^[2] Specifically, the petitioner alleges that the inquiry merchandise was not commercially available prior to the initiation of the investigations, and that the inquiry merchandise is being marketed by Chinese exporters to U.S. importers as a direct substitute for merchandise subject to the Orders.^[3] In the alternative to an anti-circumvention inquiry pursuant to section 781(d) of the Act, the petitioner requests that Commerce initiate an anti-circumvention inquiry pursuant to section 781(c) of the Act and find that inquiry merchandise constitutes subject merchandise that has undergone minor alterations in order to circumvent the Orders.^[4]

On July 16, 2018, we received comments objecting to the allegations made by the petitioner from U.S. Importers,^[5] Chinese Exporters,^[6] IKEA,^[7] and Shelter Forest.^[8] On July 30, 2018, we received rebuttal comments from the petitioner ^[9] and CNFPIA.^[10 11]

Scope of the Orders

The merchandise covered by the Orders is hardwood and decorative plywood, and certain veneered panels as described below. For purposes of the Orders, hardwood and decorative plywood is defined as a generally flat, multilayered plywood or other veneered panel, consisting of two or more layers or plies of wood veneers and a core, with the face and/or back veneer made of non-coniferous wood (hardwood) or bamboo. The veneers, along with the core may be glued or otherwise bonded together. Hardwood and decorative plywood may include products that meet the American National Standard for Hardwood and Decorative Plywood, ANSI/HPVA HP1-2016 (including any revisions to that standard).

For purposes of the Orders a “veneer” is a slice of wood regardless of thickness which is cut, sliced or sawed from a log, bolt, or flitch. The face and back veneers are the outermost veneer of wood on either side of the core irrespective of additional surface coatings or covers as described below.

The core of hardwood and decorative plywood consists of the layer or layers of one or more material(s) that are situated between the face and back veneers. The core may be composed of a range of materials, including but not limited to hardwood, softwood, particleboard, or medium density fiberboard (MDF).

All hardwood plywood is included within the scope of the Orders regardless of whether or not the face and/or back veneers are surface coated or covered and whether or not such surface coating(s) or covers obscures the grain, textures, or markings of the wood. Examples of surface coatings and covers include, but are not limited to: Ultra violet light cured polyurethanes; oil or oil-modified or water based polyurethanes; wax; epoxy-ester finishes; moisture-cured urethanes; paints; stains; paper; aluminum; high pressure laminate; MDF; medium density overlay (MDO); and phenolic film. Additionally, the face veneer of hardwood plywood may be sanded; smoothed or given a “distressed” appearance through such methods as hand-scraping or wire brushing. All hardwood plywood is included within the scope even if it is trimmed; cut-to-size; notched; punched; drilled; or has underwent other forms of minor processing. All hardwood and decorative plywood is included within the scope of the Orders, without regard to dimension (overall thickness, thickness of face veneer, thickness of back veneer, thickness of core, thickness of inner veneers, width, or length). However, the most common panel sizes of hardwood and decorative plywood are 1219 x 1829 mm (48 x 72 inches), 1219 x 2438 mm (48 x 96 inches), and 1219 x 3048 mm (48 x 120 inches).

Subject merchandise also includes hardwood and decorative plywood that has been further processed in a third country, including but not limited to trimming, cutting, notching, punching, drilling, or any other processing that would not otherwise remove the merchandise from the scope of the order if performed in the country of manufacture of the in-scope product. The scope of the Orders excludes the following items: (1) Structural plywood (also known as “industrial plywood” or “industrial panels”) that is manufactured to meet U.S. Products Standard PS 1-09, PS 2-09, or PS 2-10 for Structural Plywood (including any revisions to that standard or any substantially equivalent international standard intended for structural plywood), and which has both a face and a back veneer of coniferous wood; (2) products which have a face and back veneer of cork; (3) multilayered wood flooring, as described in the antidumping duty and countervailing duty orders on Multilayered Wood Flooring from the People's Republic of China, Import Administration, International Trade Administration. See Multilayered Wood Flooring from the People's Republic of China, 76 FR 76690 (December 8, 2011) (amended final determination of sales at less than fair value and antidumping duty order), and Multilayered Wood Flooring from the People's Republic of China, 76 FR 76693 (December 8, 2011) (countervailing duty order), as amended by Multilayered Wood Flooring from the People's Republic of China: Amended Antidumping and Countervailing Duty Orders, 77 FR 5484 (February 3, 2012); (4) multilayered wood flooring with a face veneer of bamboo or composed entirely of bamboo; (5) plywood which has a shape or design other than a flat panel, with the exception of any minor processing described above; (6) products made entirely from bamboo and adhesives (also known as “solid bamboo”); and (7) Phenolic Film Faced Plyform (PFF), also known as Phenolic Surface Film Plywood (PSF), defined as a panel with an “Exterior” or “Exposure 1” bond classification as is defined by The Engineered Wood Association, having an opaque phenolic film layer with a weight equal to or greater than 90g/m3 permanently bonded on both the face and back veneers and an opaque, moisture resistant coating applied to the edges.

Excluded from the scope of the Orders are wooden furniture goods that, at the time of importation, are fully assembled and are ready for their intended uses. Also excluded from the scope of the Orders is “ready to assemble” (RTA) furniture. RTA furniture is defined as (A) furniture packaged for sale for ultimate purchase by an end-user that, at the time of importation, includes (1) all wooden components (in finished form) required to assemble a finished unit of furniture, (2) all accessory parts (e.g., screws, washers, dowels, nails, handles, knobs, adhesive glues) required to assemble a finished unit of furniture, and 3) instructions providing guidance on the assembly of a finished unit of furniture; (B) unassembled bathroom vanity cabinets, having a space for one or more sinks, that are imported with all unassembled hardwood and hardwood plywood components that have been cut-to-final dimensional component shape/size, painted or stained prior to importation, and stacked within a singled shipping package, except for furniture feet which may be packed and shipped separately; or (C) unassembled bathroom vanity linen closets that are imported with all unassembled hardwood and hardwood plywood components that have been cut-to-final dimensional shape/size, painted or stained prior to importation, and stacked within a single shipping package, except for furniture feet which may be packed and shipped separately.

Excluded from the scope of the Orders are kitchen cabinets that, at the time of importation, are fully assembled and are ready for their intended uses. Also excluded from the scope of the Orders are RTA kitchen cabinets. RTA kitchen cabinets are defined as kitchen cabinets packaged for sale for ultimate purchase by an end-user that, at the time of importation, includes (1) all wooden components (in finished form) required to assemble a finished unit of cabinetry, (2) all accessory parts (e.g., screws, washers, dowels, nails, handles, knobs, hooks, adhesive glues) required to assemble a finished unit of cabinetry, and (3) instructions providing guidance on the assembly of a finished unit of cabinetry.

Excluded from the scope of the Orders are finished table tops, which are table tops imported in finished form with pre-cut or drilled openings to attach the underframe or legs. The table tops are ready for use at the time of import and require no further finishing or processing.

Excluded from the scope of the Orders are finished countertops that are imported in finished form and require no further finishing or manufacturing.

Excluded from the scope of the Orders are laminated veneer lumber door and window components with (1) a maximum width of 44 millimeters, a thickness from 30 millimeters to 72 millimeters, and a length of less than 2413 millimeters, (2) water boiling point exterior adhesive, (3) a modulus of elasticity of 1,500,000 pounds per square inch or higher, (4) finger-jointed or lap-jointed core veneer with all layers oriented so that the grain is running parallel or with no more than 3 dispersed layers of veneer oriented with the grain running perpendicular to the other layers; and (5) top layer machined with a curved edge and one or more profile channels throughout.

Imports of hardwood plywood are primarily entered under the following Harmonized Tariff Schedule of the United States (HTSUS) subheadings: 4412.10.0500;4412.31.0520; 4412.31.0540; 4412.31.0560; 4412.31.0620; 4412.31.0640; 4412.31.0660; 4412.31.2510; 4412.31.2520; 4412.31.2610; 4412.31.2620; 4412.31.4040; 4412.31.4050; 4412.31.4060; 4412.31.4075; 4412.31.4080; 4412.31.4140; 4412.31.4150; 4412.31.4160; 4412.31.4180; 4412.31.5125; 4412.31.5135; 4412.31.5155; 4412.31.5165; 4412.31.5175; 4412.31.5235; 4412.31.5255; 4412.31.5265; 4412.31.5275; 4412.31.6000; 4412.31.6100; 4412.31.9100; 4412.31.9200; 4412.32.0520; 4412.32.0540; 4412.32.0565; 4412.32.0570; 4412.32.0620; 4412.32.0640; 4412.32.0670; 4412.32.2510; 4412.32.2525; 4412.32.2530; 4412.32.2610; 4412.32.2630; 4412.32.3125; 4412.32.3135; 4412.32.3155; 4412.32.3165; 4412.32.3175; 4412.32.3185; 4412.32.3235; 4412.32.3255; 4412.32.3265; 4412.32.3275; 4412.32.3285; 4412.32.5600; 4412.32.3235; 4412.32.3255; 4412.32.3265; 4412.32.3275; 4412.32.3285; 4412.32.5700; 4412.94.1030; 4412.94.1050; 4412.94.3105; 4412.94.3111; 4412.94.3121; 4412.94.3141; 4412.94.3161; 4412.94.3175; 4412.94.4100; 4412.99.0600; 4412.99.1020; 4412.99.1030; 4412.99.1040; 4412.99.3110; 4412.99.3120; 4412.99.3130; 4412.99.3140; 4412.99.3150; 4412.99.3160; 4412.99.3170; 4412.99.4100; 4412.99.5115; and 4412.99.5710.

Imports of hardwood plywood may also enter under HTSUS subheadings 4412.99.6000; 4412.99.7000; 4412.99.8000; 4412.99.9000; 4412.10.9000; 4412.94.5100; 4412.94.9500; and 4412.99.9500. While the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of the Orders is dispositive.

Merchandise Subject to the Anti-Circumvention Inquiry

This anti-circumvention inquiry covers plywood with face and back veneers made of radiata and/or agathis pine that: (1) Has a TSCA or CARB label certifying that it is compliant with TSCA/CARB requirements; and (2) is made with a resin, the majority of which is comprised of one or more of the following three product types—urea formaldehyde, polyvinyl acetate, and/or soy.

Request for a Later-Developed Merchandise Anti-Circumvention Inquiry

Section 781(d)(1) of the Act provides that Commerce may initiate an anti-circumvention inquiry to determine whether merchandise developed after an AD or CVD investigation (later-developed merchandise) is within the scope of the order(s). In conducting later-developed merchandise anti-circumvention inquiries under section 781(d)(1) of the Act, Commerce will evaluate whether the general physical characteristics of the merchandise under consideration are the same as subject merchandise covered by the order, whether the expectations of the ultimate purchasers of the merchandise under consideration are no different than the expectations of the ultimate purchases of subject merchandise, whether the ultimate use of the subject merchandise and the merchandise under consideration are the same, whether the channels of trade of both products are the same, whether there are any differences in the advertisement and display of both products,^[12] and if the merchandise under consideration was commercially available at the time of the investigation, i.e., the product was present in the commercial market or the product was tested and ready for commercial production.^[13]

A. Physical Characteristics

According to the petitioner, Chinese exporters who used to offer subject merchandise with at least one side, either face or back veneer, made of hardwood instead are now offering plywood with both sides made with radiata pine and/or agathis pine, with the same interior and decorative uses as subject merchandise. The petitioner further argues that given that the merchandise is being offered as a direct substitute for subject merchandise, it is, therefore, interchangeable and serve the same end-use.^[14] The petitioner states that inquiry merchandise and subject merchandise are manufactured to the same dimensions, and that the same equipment used to peel radiata and agathis veneers can be used to peel the veneers used for subject merchandise.^[15] The petitioner claims that the inquiry merchandise and the subject merchandise will likely have the same TSCA/CARB label requirements and use similar glue types.^[16]

B. Advertisement, Display, and Channel of Trade

The petitioner claims that the channel of trade for merchandise related to the circumvention inquiry and merchandise subject to the Orders is the same, as the same Chinese producers are selling and marketing the product to the same U.S. importers who previously bought subject merchandise before the investigations. Online advertisement also describes the inquiry and subject merchandise in the same language, acknowledging that radiata pine plywood is “similar” to birch and oak plywood.^[17]

C. Commercial Availability

While the petitioner acknowledges that plywood with either a face or back veneer of radiata pine and/or agathis pine was commercially available prior to the investigations, they claim that plywood with both a face and back veneer of radiata and/or agathis pine that also: (1) Has a TSCA or CARB label certifying that it is compliant with TSCA/CARB requirements; and (2) is made with a resin, the majority of which is comprised of one or more of the following three product types—urea formaldehyde, polyvinyl acetate, and/or soy) was not commercially available.^[18]

The petitioner asserts that multiple members of the Coalition for Fair Trade in Hardwood Plywood and their sales representatives, as well as the President of the Decorative Hardwoods Association (formerly the Hardwood Plywood and Veneer Association) all confirm that they had not heard of, or seen, the inquiry merchandise prior to initiation of the investigations.^[19] The petitioner claims that a comparison between sales and marketing literature issued prior to the initiation of the investigations and sales and marketing literature issued after the initiation of the investigations demonstrates that the inquiry merchandise was not commercially available prior to the initiation of the investigations.^[20]

D. Expectations of Ultimate Purchasers

The petitioner argues that the expectations of the ultimate purchasers of subject merchandise and inquiry merchandise are the same. The petitioner states that subject merchandise is generally chosen for its decorative and aesthetic qualities and is used in products such as furniture, kitchen cabinets, architectural woodwork, wall paneling, and other similar products, and that the distinguishing characteristic of subject merchandise is that it is primarily used in interior and non-structural applications.^[21] The petitioner claims that online offers of inquiry merchandise (highlighting the same characteristics as subject merchandise and offering inquiry merchandise for the same applications as subject merchandise) confirms that the expectations of the ultimate purchasers of inquiry merchandise and subject merchandise are the same.^[22] The petitioner argues that any plywood used in interior/decorative applications must be labeled as TSCA/CARB compliant, and that the ultimate purchasers would expect that both subject merchandise and inquiry merchandise would have certifying labels that the plywood is compliant with TSCA/CARB requirements.^[23]

E. Ultimate Use

The petitioner asserts that the ultimate use of both the subject merchandise and inquiry merchandise is identical. Further, they claim that inquiry merchandise is offered in the same dimensions as subject merchandise, as well as both being offered for the same decorative or interior purposes, such as cabinetry, furniture, and other functions.^[24]

F. Channels of Trade

The petitioner argues that the channels of trade for inquiry merchandise and subject merchandise are the same, because the same Chinese producers and exporters and domestic importers who previously offered subject merchandise are now offering inquiry merchandise as a direct alternative to the same customers.^[25] The petitioner also states that online offers describe inquiry merchandise and subject merchandise with hardwood face and back veneers in the same manner.^[26] The petitioner explains that big-box retailers include inquiry merchandise under the “Hardwood Plywood” category on their websites.^[27]

G. Advertisement and Display

The petitioner argues that inquiry merchandise is advertised and displayed in the same manner as subject merchandise, because Chinese producers and exporters and domestic importers are offering inquiry merchandise to the same customers who used to purchase subject merchandise with at least one side made of hardwood, as a direct alternative, and inquiry merchandise is being offered for the same applications as subject merchandise.^[28] The petitioner claims that inquiry merchandise is described in the same manner as subject merchandise in advertisements.^[29]

Conclusion

Based on the information provided by the petitioner, Commerce finds there is sufficient basis to initiate an anti-circumvention inquiry, pursuant to section 781(d) of the Act.^[30] Commerce will determine whether the merchandise subject to the inquiry (identified in the “Merchandise Subject to the Anti-Circumvention Inquiry” section above) represents a later-developed product that can be considered subject to the Orders. Commerce will not order the suspension of liquidation of entries of any additional merchandise at this time. However, in accordance with 19 CFR 351.225(l)(2), if Commerce issues a preliminary affirmative determination, we will then instruct U.S. Customs and Border Protection to suspend liquidation and require a cash deposit of estimated duties, at the applicable rate, for each unliquidated entry of the merchandise at issue, entered or withdrawn from warehouse for consumption on or after the date of initiation of the inquiry. In the event we issue a preliminary affirmative determination of circumvention pursuant to section 781(d) of the act (later-developed merchandise), we intend to notify the International Trade Commission, in accordance with section 781(e)(1) of the Act and 19 CFR 351.225(f)(7)(i)(C), if applicable. Commerce will establish a schedule for questionnaires and comments on the issues. In connection with this anti-circumvention inquiry, in order to determine the extent to which a country-wide finding applicable to all exports might be warranted, as alleged by the petitioner, Commerce will issue questionnaires to potential Chinese producers or exporters of inquiry merchandise to the United States. Companies failing to respond completely and timely to Commerce's questionnaire may be deemed uncooperative and an adverse inference may be applied in determining whether such companies are circumventing the Orders. See section 776 of the Act. Commerce intends to issue its final determination within 300 days of this initiation, in accordance with section 781(f) of the Act.

This notice is published in accordance with section 781(d) of the Act and 19 CFR 351.225(j).

Dated: September 18, 2018.

Gary Taverman,

Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance.

Footnotes

1.  See Certain Hardwood Plywood Products from the People's Republic of China: Amended Final Determination of Sales at Less Than Fair Value, and Antidumping Duty Order, 83 FR 504 (January 4, 2018) and Certain Hardwood Plywood Products from the People's Republic of China: Countervailing Duty Order, 82 FR 513 (January 4, 2018) (collectively, Orders).

2.  See the petitioner's letter, “Certain Hardwood Plywood Products from the People's Republic of China: Request for Anti-Circumvention Inquiry,” dated June 26, 2018 (Petitioner's Request), at 6-8.

3.  Id.

4.  Id. at 33.

5.  See East Coast Lumber Co., Elberta Crate and Box Co., Holland Southwest International, Inc., Laminate Technologies, Inc., Liberty Woods International, Inc., Masterbrand Cabinets, Inc., McCorry & Company Limited, MJB Wood Group, Inc., Northwest Hardwoods, Inc., Patriot Timber Products Inc., Sierra Forest Products, Inc., Taraca Pacific, Inc. and USPLY LLC (collectively, U.S. Importers) letter, “Certain Hardwood Plywood Products from the People's Republic of China: Objection to Second Request for Anti-Circumvention Inquiry,” dated July 16, 2018.

6.  See Far East American, Inc., Fei County Hongsheng Wood Industry Co., Ltd, Feixian Dongqin Woodwork Co., Ltd, Feixian Longteng Wood Co., Ltd., Feixian Tanyi Youcheng Jiafu Plywood Factory, Grand Focus Intl. Ltd., Jiangsu Hanbao Building Material Co., Ltd, Lin Yi Huasheng Yongbin Wood Co., Lin Yi Tian He Wooden Industry Co., Ltd, Linyi Celtic Wood Co., Ltd, Linyi City Lanshan District Fubo Wood Factory, Linyi City Lanshan District Fuerda Wood Factory, Linyi City Lanshan District Wanmei Board Factory, Linyi City Shenrui International Trade Co., Ltd., Linyi Dongfang Bayley Wood Co. Ltd., Linyi Dongfangjuxin Wood Co. Ltd., Linyi Evergreen Wood Co., Ltd., Linyi Glary Plywood Co. Ltd., Linyi Hengsheng Wood Industry Co. Ltd., Linyi Jiahe Wood Industry Co., Ltd., Linyi Linhai Wooden Industry Co., Ltd., Linyi Qianfeng Wood Factory, Linyi Sanfortune Wood Co. Ltd Linyi Tuopu Zhixin Wooden Industry Co., Ltd., Shanghai Futuwood Trading Company Ltd., Sumec International Technology Co., Ltd., Suzhou Oriental Dragon Import And Export Corp. Ltd., Xu Zhou Changcheng Wood Co., Ltd., Xuzhou Camry Wood Co., Ltd., Xuzhou Golden River Wood Co., Ltd., and Xuzhou Jiangyang Wood Industries Co., Ltd., Xuzhou Longyuan Wood Industry Co., Ltd. (collectively, Chinese Exporters) letter, “Hardwood Plywood from the People's Republic of China Comments In Opposition to Request for Anti-Circumvention Inquiry: Certain Softwood Species,” dated July 16, 2018.

7.  See IKEA Supply AG (IKEA) letter, “Certain Hardwood Plywood Products from the People's Republic of China: Comments Related to Petitioner's Second Anti-Circumvention Inquiry Request,” dated July 16, 2018.

8.  See Shelter Forest International Acquisition, Inc., Xuzhou Shelter Import & Export Co., Ltd., and Shandong Shelter Forest Products Co., Ltd. (collectively, Shelter Forest) letter “Comment on Certain U.S. Producers' Request for Anti-Circumvention Inquiry Certain Hardwood Plywood Products from China,” dated July 16, 2018.

9.  See China National Forest Products Industry Association and its members Dangshan County Gui Yang Wood Industry Co., Ltd., Shandong Dongfang Bayley Wood Co., Ltd., and Pingyi Jinniu Wood Co., Ltd., (CNFPIA) letter, “Hardwood Plywood Products from the People's Republic of China: Rebuttal Comments in Opposition to Petitioner's Second Anti-Circumvention Inquiry Request,” dated July 30, 2018.

10.  See the petitioner letter, “Certain Hardwood Plywood Products from the People's Republic of China: Rebuttal Comments,” dated July 30, 2018.

11.  After consideration of the comments filed by interested parties in opposition to the initiation of the petitioner's circumvention allegation, Commerce will address the arguments and factual information presented in the comments during the course of this anti-circumvention inquiry.

12.  See section 781(d)(1) of the Act.

13.  See Later-Developed Merchandise Anticircumvention Inquiry of the Antidumping Duty Order on Petroleum Wax Candles from the People's Republic of China: Affirmative Preliminary Determination of Circumvention of the Antidumping Duty Order, 71 FR 32033, 32035 (June 2, 2006) unchanged in Later-Developed Merchandise Anticircumvention Inquiry of the Antidumping Duty Order on Petroleum Wax Candles from the People's Republic of China: Affirmative Final Determination of Circumvention of the Antidumping Duty Order, 71 FR 59075 (October 6, 2006).

14.  See Petitioner's Request at 26-27.

15.  Id. at 28.

16.  Id.

17.  Id. at 31.

18.  Id. at 22.

19.  Id. at 23.

20.  Id. at 24.

21.  Id. at 28-30.

22.  Id.

23.  Id.

24.  Id. at 30.

25.  Id. at 31.

26.  Id.

27.  Id.

28.  Id. at 32.

29.  Id.

30.  Because we have determined to initiate an anti-circumvention inquiry pursuant to section 781(d) of the Act, we do not address the petitioner's request to alternatively initiate an anti-circumvention inquiry pursuant to section 781(c) of the Act.