[Federal Register Volume 74, Number 161 (Friday, August 21, 2009)]
[Notices]
[Pages 42230-42232]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-20139]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-504]
Petroleum Wax Candles from the People's Republic of China:
Request for Comments on the Scope of the Antidumping Duty Order and the
Impact on Scope Determinations
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce (``Department'') has considered
certain novelty candles (i.e., candles in the shape of an identifiable
object or with holiday-specific design both being discernable from
multiple angles) outside the scope of the Order. See Antidumping Duty
Order: Petroleum Wax Candles from the People's Republic of China, 51
Fed. Reg. 30686 (August 28, 1986) (``Order''). These exclusions were
made in accordance with 19 C.F.R. Sec. 351.225(k)(1) and past
Department practices. However, given the extremely large number of
scope determinations requested by outside parties, the Department now
seeks comments from the interested parties on the best method to
consider whether novelty candles should or should not be included
within the scope of the Order given the extremely large number of scope
determinations requested by outside parties.
DATES: Comments must be submitted no later than September 16, 2009.
ADDRESSES: Written comments (original and six copies) should be sent to
the Secretary of Commerce; Attn: Alex Villanueva, Import
Administration, APO/Dockets Unit, Room 1870, U.S. Department of
Commerce, 14th Street & Constitution Ave., NW, Washington, DC 20230.
FOR FURTHER INFORMATION CONTACT: Alex Villanueva, Program Manager, AD/
CVD Operations, Office 9, Import Administration, U.S. Department of
Commerce, 14th Street & Constitution Ave., NW, Washington, DC 20230,
telephone: (202) 482-3208.
SUPPLEMENTARY INFORMATION:
Background
The regulations governing the Department's scope determinations are
found at 19 C.F.R. Sec. 351.225. On matters concerning the scope of an
antidumping duty order, the Department first examines the descriptions
of the merchandise contained in the petition, the initial
investigation, and the determinations of the Secretary (including prior
scope determinations) and the U.S. International Trade Commission
(``ITC''). A determination may take place with or without a formal
inquiry. If the Department determines that these descriptions are
dispositive of the matter, the Department will issue a final scope
ruling as to whether or not the subject merchandise is covered by the
order. See 19 C.F.R. Sec. 351.225(k)(1).
Conversely, where the descriptions of the merchandise are not
dispositive, the Department will consider the five additional factors
set forth at 19 C.F.R. Sec. 351.225(k)(2). These criteria are: (1) the
physical characteristics of the merchandise; (2) the expectations of
the ultimate purchasers; (3) the ultimate use of the product; (4) the
channels of trade in which the product is sold; and (5) the manner in
which the product is advertised and displayed. The determination as to
which analytical framework is most appropriate in any given scope
inquiry is made on a case-by-case basis after consideration of all
evidence before the Department.
In past scope determinations under the Order, the Department has
relied on the scope of the Petition, prior scope determinations and
documents from the ITC as guidance. We have noted that in its
Antidumping Petition on Behalf of the National Candle Association
(``NCA''), dated September 4, 1985 (``Antidumping Petition''), the NCA
requested that the investigation cover:
{c{time} andles {which{time} are made from petroleum wax and
contain fiber or paper-cored wicks. They are sold in the following
shapes: tapers, spirals, and straight-sided dinner candles; rounds,
columns, pillars; votives; and various wax-filled containers. These
candles may be scented or unscented ... and are generally used by
retail consumers in the home or yard for decorative or lighting
purposes.
See Antidumping Petition at 7.
The Department adopted this scope language in its notice of
initiation. This scope language carried forward without change through
the preliminary and final determinations of sales at less than fair
value and the eventual antidumping duty order:
{c{time} ertain scented or unscented petroleum wax candles made
from petroleum wax and having fiber or paper-cored wicks. They are sold
in the following shapes: tapers, spirals, and straight-sided dinner
candles; rounds, columns, pillars, votives; and various wax-filled
containers.
See Petroleum Wax Candles from the People's Republic of China:
Initiation of Antidumping Duty Investigation, 50 Fed. Reg. 39743
(September 30, 1985); Petroleum Wax Candles from the People's Republic
of China: Preliminary Determination of Sales at Less Than Fair Value,
51 Fed. Reg. 6016 (February 19, 1986); Petroleum Wax Candles from the
People's Republic of China: Final Determination of Sales at Less Than
Fair Value, 51 Fed. Reg. 25085 (July 10, 1986); and Order. However,
while the ITC adopted a similar definition of the ``domestic like
product'' subject to its determinations, it noted that the
investigations did not include ``birthday, birthday numeral and
figurine type candles.'' See Candles from the People's Republic of
China: Determination of the Commission in Investigation No. 731-TA-282
(Final), Publication 1888 (August 1986) at 4, note 5, and A-2.
The ITC's statement regarding birthday, birthday numeral and
figurine type candles was echoed in the Department's instructions to
the U.S. Customs Service\1\ issued in connection with a July 1987 scope
determination concerning an exception from the Order for novelty
candles (CBP Notice), which states:
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On July 28, 2006, the United States Customs Service since was
renamed as the United States Bureau of Customs and Border
Protection. See Homeland Security Act of 2002, Pub. L. 107-296,
Sec. 1502, 116 Stat. 2135, 2308-09 (2002); Reorganization Plan
Modification for the Department of Homeland Security, H.R. Doc. No.
108-32, at 4 (2003).
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The Department of Commerce has determined that certain novelty
candles, such as Christmas novelty candles, are not within the scope of
the antidumping duty order on petroleum-wax candles from the People's
Republic of China (PRC). Christmas novelty candles are candles
specially designed for use only in connection with the Christmas
holiday season. This use is clearly indicated by Christmas scenes and
symbols depicted in the candle design. Other novelty candles not within
the scope of the order include candles having scenes or symbols of
other occasions (e.g., religious holidays or special events) depicted
in their designs, figurine candles, and candles shaped in the form of
identifiable objects (e.g., animals or numerals).
See CBP Notice.
In November 2001, the Department changed its practice on the issue
of candle shapes. See Final Scope Ruling Antidumping Duty Order on
Petroleum Wax Candles From the People's Republic of China (A-570-504);
JC Penney Purchasing Corporation, (November 9, 2001) (``JC Penney'').
In this ruling, the Department reviewed the
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text of the scope of the Order, beginning with the text of the first
sentence of the scope which covers ``{c{time} ertain scented or
unscented petroleum wax candles made from petroleum wax and having
fiber or paper-cored wicks.'' See Order. The Department stated in JC
Penney that: {t{time} he text following this broad inclusive sentence
provides a list of shapes, which list is not modified by any express
words of exclusivity. The result of our prior practice of excluding
candles of a shape other than those listed was arguably inconsistent
with the fact that such candles were scented or unscented petroleum wax
candles made from petroleum wax and having fiber or paper-cored wicks.'
See JC Penney at 4-5, footnote 1. Furthermore, in JC Penney, the
Department stated that:
We now determine that this practice was incorrect because it had
the effect of narrowing the broad coverage of the first sentence of the
Order's scope. The list of shapes in the second sentence of the Order's
scope does not provide a textual basis for such a narrowing of the
coverage of the first sentence of the Order's scope. Accordingly, in
order to give full effect to the first sentence of the inclusive
language of the scope, the Department in this and future cases normally
will evaluate whether candles of a shape not listed by the inclusive
language of the Order's scope are scented or unscented petroleum wax
candles made from petroleum wax and having fiber or paper-cored wicks.
See JC Penney at 5, footnote 1. Since 2001, the Department has
determined that if the candle is made from petroleum wax and has a
fiber or paper-cored wick it falls within the scope of the Order
regardless of shape unless the candle possesses the characteristics set
out in the CBP Notice, in which case a candle falls within the
Department's novelty candle exception and is not within the scope of
the Order.
Issue of Concern
The Department is reconsidering the JC Penney methodology, given
the large number of candles scope request submitted each year, many of
which have claimed exclusion on the grounds that they are novelty
candles. Since the JC Penney ruling in 2001, the Department has issued
596 scope determinations for this Order. Currently, there are 308
pending candles scope determinations. See Scope Requests submitted by
Trade Associates Group, Ltd., dated June 11, 2009, and Sourcing
International, LLC, dated June 25, 2009, July 28, 2009. The volume of
requests in this Order is greater than any other antidumping duty
order. It is evident that the methodology adopted in JC Penny has
resulted in uncertainty as to what candles fall within the scope of the
Order, because this methodology requires that the Department examine
each individual candle in order to reach a determination as to whether
it qualifies as a novelty candle. This methodology has resulted in
parties submitting an extremely large number of scope requests,
hindering the Department's ability to conduct a timely analysis of
these requests.
Request for Comments
As a result of the uncertainty driving the growing number of
requests for candles scope determinations and an evaluation of the
resources needed to complete these analyses, the Department is
requesting that interested parties, as defined by 19 U.S.C. Sec.
1677(9), provide comments on whether it is proper to continue analyzing
whether novelty candles are outside the scope of the Order pursuant to
the JC Penney methodology.
The Department will consider all comments proposed by interested
parties. However, we are proposing the following two options:
Option A
The Department would consider all candle shapes identified in the
scope of the Order, (i.e., tapers, spirals, and straight-sided dinner
candles; rounds, columns, pillars, votives; and various wax-filled
containers) to be within the scope of the Order, regardless of
etchings, prints, moldings or other artistic or decorative enhancements
including any holiday-related art. All other candle shapes would be
considered outside the scope of the Order.
Option B
The Department would consider all candle shapes, including novelty
candles, to be within the scope of the Order including those not in the
shapes listed in the scope of the Order, as that is not an exhaustive
list of shapes, but simply an illustrative list of common candle
shapes.
The Department is not limiting its consideration to only these two
options and welcomes all interested parties to submit comments and
proposals for conducting the increasing number of requests for candle
scope determinations. We also invite interested parties to consider the
historical context in which the novelty exclusion was created and
whether the basis for that exclusion should be reconsidered given the
increasing number of requests for candle scope determinations.
The Department intends to issue a preliminary determination with
respect to this issue 60 days after September 16, 2009. Parties will
then be able to file a brief 30 days after the issuance of the
preliminary determination and rebuttal briefs 10 days later. The
Department intends to issue a final determination within 60 days after
the receiving the comments to the draft response.
Pending Scope Determinations
Given the overwhelming number of scope requests, we will not issue
a determination on the pending scope requests until we have completed
our analysis of the comments submitted by interested parties.
Submission of Comments
Persons wishing to comment should file one signed original and six
copies of each set of comments by the date specified above. The
Department will consider all comments received before the close of the
comment period. Comments received after the end of the comment period
will be considered, if possible, but their consideration cannot be
assured. The Department will not accept comments accompanied by a
request that a part or all of the material be treated confidentially
because of its business proprietary nature or for any other reason. The
Department will return such comments and materials to the persons
submitting the comments and will not consider them. All comments
responding to this notice will be a matter of public record and will be
available for inspection and copying at Import Administration's Central
Records Unit, Room 1117. The Department requires that comments be
submitted in written form. The Department recommends submission of
comments in electronic form to accompany the required paper copies.
Comments filed in electronic form should be submitted either by e-
mail to the Webmaster below, or on CD ROM, as comments submitted on
diskette is likely to be damaged by postal radiation treatment.
Comments received in electronic form will be made available to the
public in Portable Document Format (PDF) on the Internet at the Import
Administration Web site at the following address: http://www.ia.ita.doc.gov. Any questions concerning file formatting, document
conversion, access on the Internet, or other electronic filing issues
should be addressed to Andrew Lee Beller, Import Administration
Webmaster, at (202) 482
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0866, e-mail address: [email protected].
Dated: August 14, 2009.
John M. Andersen,
Acting Deputy Assistant Secretary for Antidumping and Countervailing
Duty Operations.
[FR Doc. E9-20139 Filed 8-20-09; 8:45 am]
BILLING CODE 3510-DS-S