[Federal Register Volume 87, Number 136 (Monday, July 18, 2022)]
[Notices]
[Pages 42702-42704]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-15204]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-053, C-570-054]


Certain Aluminum Foil From the People's Republic of China: 
Initiation of Circumvention Inquiries of the Antidumping Duty and 
Countervailing Duty Orders

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

SUMMARY: Based on available information, the Department of Commerce 
(Commerce) is self-initiating country-wide circumvention inquiries to 
determine whether imports of certain aluminum foil (aluminum foil), 
completed in the Republic of Korea (Korea) and the Kingdom of Thailand 
(Thailand) (collectively, the third countries) using inputs (i.e., 
aluminum foil- and sheet-gauge products) manufactured in the People's 
Republic of China (China), are circumventing the antidumping duty (AD) 
and countervailing duty (CVD) orders on aluminum foil from China 
(collectively, the Orders).

DATES: Applicable July 18, 2022.

FOR FURTHER INFORMATION CONTACT: Erin Kearney at (202) 482-0167, AD/CVD 
Operations, Office VI or Shawn Gregor at (202) 482-3226, Office of 
Policy, Enforcement and Compliance, International Trade Administration, 
U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, 
DC 20230.

SUPPLEMENTARY INFORMATION:

Background

    On March 9, 2017, The Aluminum Association Trade Enforcement 
Working Group filed petitions seeking the imposition of AD and CVD 
duties on imports of aluminum foil from China.\1\ Following Commerce's 
affirmative determinations of dumping and countervailable subsidies,\2\ 
and the U.S. International Trade Commission's (ITC) finding of material 
injury,\3\ Commerce issued the Orders.\4\
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    \1\ See Certain Aluminum Foil from the People's Republic of 
China: Initiation of Less-Than-Fair-Value Investigation, 15691 
(March 30, 2017); see also Certain Aluminum Foil from the People's 
Republic of China: Initiation of Countervailing Duty Investigation, 
82 FR 15688 (March 30, 2017).
    \2\ See Certain Aluminum Foil from the People's Republic of 
China: Final Affirmative Determination of Sales at Less Than Fair 
Value, 83 FR 9282 (March 5, 2018); see also See Certain Aluminum 
Foil from the People's Republic of China: Amended Final 
Determination of Sales at Less than Fair Value and Antidumping Duty 
Order, 83 FR 17362 (April 19, 2018); Countervailing Duty 
Investigation of Certain Aluminum Foil from the People's Republic of 
China: Final Affirmative Determination, 83 FR 9274 (March 5, 2018); 
and Certain Aluminum Foil from the People's Republic of China: 
Amended Final Affirmative Countervailing Duty Determination and 
Countervailing Duty Order, 83 FR 17360 (April 19, 2018).
    \3\ See Aluminum Foil from China, 83 FR 16128 (April 13, 2018); 
see also Aluminum Foil from China, Inv Nos. 701-TA-570 and 731-TA-
1436, USITC Pub. 4771 (Final).
    \4\ See Certain Aluminum Foil from the People's Republic of 
China: Amended Final Determination of Sales at Less than Fair Value 
and Antidumping Duty Order, 83 FR 17362 (April 19, 2018); see also 
Certain Aluminum Foil from the People's Republic of China: Amended 
Final Affirmative Countervailing Duty Determination and 
Countervailing Duty Order, 83 FR 17360 (April 19, 2018) 
(collectively, Orders).
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Scope of the Orders

    The merchandise covered by the Orders is certain aluminum foil from 
China, ``having a thickness of 0.2 mm or less, in reels exceeding 25 
pounds, regardless of width.'' All aluminum foil is covered by the 
Orders regardless of specification. Excluded from the scope of the 
Orders is ``aluminum foil that is backed with paper, paperboard, 
plastics, or similar backing materials on one side or both sides of the 
aluminum foil, as well as etched capacitor foil and aluminum foil that 
is cut to shape.'' For a full description of the scope of the Orders, 
see the ``Scope of the Orders,'' in the appendix to this notice.

Merchandise Subject to Circumvention Inquiries

    The circumvention inquiries cover aluminum foil assembled and 
completed in Korea and Thailand, using Chinese-origin aluminum foil 
and/or sheet, that is subsequently exported from Korea and Thailand to 
the United States. Specifically, Commerce placed information on the 
administrative record, as attachments to its Initiation Memorandum, 
that indicates aluminum foil inputs produced in China undergo further 
processing in Korea and Thailand before being exported to the United 
States.\5\ Commerce intends to

[[Page 42703]]

determine as part of this circumvention inquiry whether or not that 
further processing in Korea and Thailand is minor or insignificant and 
otherwise meets the circumvention criteria set forth in section 781(b) 
of the Act.
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    \5\ See Memorandum, ``Aluminum Foil from the People's Republic 
of China: Initiation of Circumvention Inquiries on the Antidumping 
Duty and Countervailing Duty Orders (Initiation Memo).'' This memo 
is a public document dated concurrently with, and hereby adopted by, 
this notice and on file electronically via ACCESS. Access to 
documents filed via ACCESS is also available in the Central Records 
Unit, Room B8024, of the main Department of Commerce building.
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Statutory and Regulatory Requirements To Initiate Circumvention 
Inquiries

    Section 351.226(b) of Commerce's regulations states that if 
Commerce ``determines from available information that an inquiry is 
warranted into the question of whether the elements necessary for a 
circumvention determination under section 781 of the Act exist,'' 
Commerce ``may initiate a circumvention inquiry and publish a notice of 
initiation in the Federal Register.''Section 781(b)(1) of the Tariff 
Act of 1930, as amended (the Act) provides that Commerce may find 
circumvention of an AD or CVD order when merchandise of the same class 
or kind subject to the order is completed or assembled in a foreign 
country other than the country to which the order applies. In 
conducting circumvention inquiries, under section 781(b)(1) of the Act, 
Commerce relies on the following criteria: (A) 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 or 
countervailing duty order or finding, (B) before importation into the 
United States, such imported merchandise is completed or assembled in 
another foreign country from merchandise which is subject to the order 
or merchandise which is produced in the foreign country that is subject 
to the order, (C) the process of assembly or completion in the foreign 
country referred to in section (B) is minor or insignificant, (D) the 
value of the merchandise produced in the foreign country to which the 
AD or CVD order applies is a significant portion of the total value of 
the merchandise exported to the United States, and (E) the 
administering authority determines that action is appropriate to 
prevent evasion of such order or finding.
    In determining whether or not 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 Commerce to consider: 
(A) the level of investment in the foreign country, (B) the level of 
research and development in the foreign country, (C) the nature of the 
production process in the foreign country, (D) the extent of production 
facilities in the foreign country, and (E) whether or not the value of 
processing performed in the foreign country represents a small 
proportion of the value of the merchandise imported into the United 
States. However, no single factor, by itself, controls Commerce's 
determination of whether the process of assembly or completion in a 
third country is minor or insignificant.\6\ Accordingly, it is 
Commerce's practice to evaluate each of these five factors as they 
exist in the third country, depending on the totality of the 
circumstances of the particular circumvention inquiry.\7\
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    \6\ See Statement of Administrative Action accompanying the 
Uruguay Round Agreements Act (SAA), H.R. Doc. No. 103-316 (1994) at 
893.
    \7\ See Uncovered Innerspring Units from the People's Republic 
of China: Final Affirmative Determination of Circumvention of the 
Antidumping Duty Order, 83 FR 65626 (December 21, 2018), and 
accompanying Issues and Decision Memorandum at 4.
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    In addition, section 781(b)(3) of the Act sets forth additional 
factors to consider in determining whether to include merchandise 
assembled or completed in a third country within the scope of an 
antidumping and/or countervailing duty order. Specifically, Commerce 
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 that resulted in the issuance of 
such order or finding.

Available Information Supports Initiations of Circumvention Inquiries

    Based on available information, we determine initiation of these 
circumvention inquiries are warranted to determine whether certain 
imports of aluminum foil, completed in the third countries using inputs 
manufactured in China, are circumventing the Orders.\8\ Commerce has 
made this determination in accordance with its analysis of the factors 
set forth in section 781(b) of the Act and 19 CFR 351.226(i).\9\
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    \8\ See Initiation Memorandum. As explained in the Initiation 
Memorandum, the available information supports initiating these 
circumvention inquiries on a country-wide basis. Commerce has taken 
this approach in prior circumvention inquiries, where the facts 
supported initiation on a country-wide basis. See, e.g., Quartz 
Surface Products from the People's Republic of China: Initiation of 
Scope and Circumvention Inquiries of the Antidumping Duty and 
Countervailing Duty Orders, 87 FR 6844 (February 7, 2022); see also 
Oil Country Tubular Goods from the People's Republic of China: 
Initiation of Anti-Circumvention Inquiries on the Antidumping and 
Countervailing Duty Orders, 85 FR 71877, 71878-79 (November 12, 
2020); Stainless Steel Sheet and Strip from the People's Republic of 
China: Initiation of Anti-Circumvention and Scope Inquiries on the 
Antidumping and Countervailing Duty Orders, 85 FR 29401, 29402 (May 
15, 2020); Corrosion-Resistant Steel Products from the People's 
Republic of China: Initiation of Anti-Circumvention Inquiries on the 
Antidumping Duty and Countervailing Duty Orders, 84 FR 43585 (August 
21, 2019); Steel Butt-Weld Pipe Fittings from the People's Republic 
of China: Initiation of Anti-Circumvention Inquiry on the 
Antidumping Duty Order, 82 FR 40556, 40560 (August 25, 2017) 
(stating at initiation that Commerce would evaluate the extent to 
which a country-wide finding applicable to all exports might be 
warranted); and Certain Corrosion-Resistant Steel Products from the 
People's Republic of China: Initiation of Anti-Circumvention 
Inquiries on the Antidumping Duty and Countervailing Duty Orders, 81 
FR 79454, 79458 (November 14, 2016) (stating at initiation that 
Commerce would evaluate the extent to which a country-wide finding 
applicable to all exports might be warranted). Pursuant to section 
19 CFR 351.226(m), even if Commerce initiates an inquiry on a 
country-wide basis, if it subsequently finds circumvention to exist, 
it is not required to apply its ultimate determination on a country-
wide basis, but has the discretion to apply that circumvention 
determination as it deems appropriate.
    \9\ See Initiation Memorandum.
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    Pursuant to 19 CFR 351.226(f)(7), Commerce may ``alter or extend'' 
time limits under the circumvention inquiry as necessary to make 
certain all parties to each or both segments of the proceeding are able 
to file comments and factual information as necessary.
    Consistent with the approach taken in prior circumvention inquiries 
that Commerce initiated on a country-wide basis, we intend to solicit 
information from certain companies in Korea and Thailand concerning 
their production of aluminum foil and their shipments thereof to the 
United States. A company's failure to completely respond to Commerce's 
requests for information may result in the application of partial or 
total facts available, pursuant to section 776(a) of the Act, which may 
include adverse inferences, pursuant to section 776(b) of the Act.

Respondent Selection

    Commerce intends to base respondent selection on responses to 
quantity and value questionnaires. Commerce intends to identify the 
companies to which it will issue the quantity and value questionnaire, 
in part, based on CBP data. Parties to which Commerce does not issue 
the quantity and value questionnaire may also respond to the quantity 
and value questionnaire, which will be available in ACCESS, by the

[[Page 42704]]

applicable deadline. Commerce intends to place the CBP data on the 
record within five days of publication of the initiation notice. 
Comments regarding the CBP data and respondent selection should be 
submitted within seven days after placement of the CBP data on the 
record of the relevant inquiry.

Suspension of Liquidation

    Pursuant to 19 CFR 351.226(l)(1), when Commerce self-initiates a 
circumvention inquiry under 19 CFR 351.226(b), Commerce will notify 
U.S. Customs and Border Protection (CBP) of the initiation and direct 
CBP to continue the suspension of liquidation of entries of products 
subject to the circumvention inquiry that were already subject to the 
suspension of liquidation, and to apply the cash deposit rate that 
would be applicable if the product were determined to be circumventing 
the order. Accordingly, Commerce will notify CBP of the initiation of 
the circumvention inquiry and direct CBP to continue to suspend 
(unliquidated) entries of the products subject to the circumvention 
inquiry that were already subject to the suspension of liquidation. In 
addition, Commerce will direct CBP to apply the cash deposit rate that 
would be applicable if the products were determined to be circumventing 
the Orders.
    Should Commerce issue preliminary or final circumvention 
determinations, Commerce will follow the suspension of liquidation 
rules under 19 CFR 351.226(l)(2)-(4). In the event Commerce issues 
affirmative preliminary or final circumvention determinations that the 
products are circumventing the Orders, Commerce will instruct CBP to 
continue the suspension of liquidation of previously suspended entries 
and to apply the applicable cash deposit rate. Commerce will also 
instruct CBP to begin the suspension of liquidation and application of 
cash deposits for any unliquidated entries not yet suspended, entered, 
or withdrawn from warehouse, for consumption, on or after the date of 
publication of the notice of initiation of the circumvention inquiry 
pursuant to paragraphs (l)(2)(ii) and (l)(3)(ii). In addition, pursuant 
to paragraphs (l)(2)(iii)(A) and (l)(3)(iii)(A), Commerce may instruct 
CBP to begin the suspension of liquidation and application of cash 
deposits for any unliquidated entries not yet suspended, entered, or 
withdrawn from warehouse, for consumption, prior to the date of 
initiation of the circumvention inquiry, but not for such entries prior 
to November 4, 2021, the effective date of these provisions in the 
Final Rule.\10\ These rules will not affect CBP's authority to take any 
additional action with respect to the suspension of liquidation or 
related measures for these entries, as stated in 19 CFR 351.226(l)(5).
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    \10\ Regulations to Improve Administration and Enforcement of 
Antidumping and Countervailing Duty Laws, 86 FR 52300, 52345 
(September 20, 2021) (Final Rule).
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Notification to Interested Parties

    In accordance with section 19 CFR 351.226(b) and 781(b) of the Act, 
Commerce determines that available information supports initiating 
circumvention inquiries to determine whether certain imports of 
aluminum foil, assembled and completed in, and exported from, Korea and 
Thailand using inputs manufactured in China, are circumventing the 
Orders. Accordingly, Commerce is notifying all interested parties of 
the initiation of circumvention inquiries. In addition, we have 
included a description of the products that are the subject of these 
inquiries, and an explanation of the reasons for Commerce's decision to 
initiate these inquiries as provided above and in the accompanying 
Initiation Memorandum.
    In accordance with 19 CFR 351.226(l)(2), if Commerce issues 
preliminary affirmative determinations, we will then instruct CBP to 
suspend liquidation and require a cash deposit of estimated antidumping 
and countervailing 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 inquiries. Commerce intends to issue its final determinations 
within 300 days from the date of publication of the notice of 
initiation of a circumvention inquiry in the Federal Register.
    This notice is published in accordance with 19 CFR 351.226(b) and 
section 781(b) of the Act.

    Dated: July 11, 2022.
Lisa W. Wang,
Assistant Secretary for Enforcement and Compliance.

Appendix

Scope of the Orders

    The merchandise covered by the orders is aluminum foil having a 
thickness of 0.2 mm or less, in reels exceeding 25 pounds, 
regardless of width. Aluminum foil is made from an aluminum alloy 
that contains more than 92 percent aluminum. Aluminum foil may be 
made to ASTM specification ASTM B479, but can also be made to other 
specifications. Regardless of specification, however, all aluminum 
foil meeting the scope description is included in the scope, 
including aluminum foil to which lubricant has been applied to one 
or both sides of the foil.
    Excluded from the scope of the orders is aluminum foil that is 
backed with paper, paperboard, plastics, or similar backing 
materials on one side or both sides of the aluminum foil, as well as 
etched capacitor foil and aluminum foil that is cut to shape.
    Where the nominal and actual measurements vary, a product is 
within the scope if application of either the nominal or actual 
measurement would place it within the scope based on the definitions 
set forth above. The products under the orders are currently 
classifiable under Harmonized Tariff Schedule of the United States 
(HTSUS) subheadings 7607.11.3000, 7607.11.6000, 7607.11.9030, 
7607.11.9060, 7607.11.9090, and 7607.19.6000. Further, merchandise 
that falls within the scope of these proceedings may also be entered 
into the United States under HTSUS subheadings 7606.11.3060, 
7606.11.6000, 7606.12.3045, 7606.12.3055, 7606.12.3090, 
7606.12.6000, 7606.91.3090, 7606.91.6080, 7606.92.3090, and 
7606.92.6080.
    Although the HTSUS subheadings are provided for convenience and 
customs purposes, the written description of the scope of the orders 
is dispositive.

[FR Doc. 2022-15204 Filed 7-15-22; 8:45 am]
BILLING CODE 3510-DS-P