Petroleum Wax Candles From the People's Republic of China: Partial Termination of Circumvention Inquiry and Affirmative Preliminary Determination of Circumvention of the Antidumping Duty Order, 14518-14521 [E7-5691]
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Federal Register / Vol. 72, No. 59 / Wednesday, March 28, 2007 / Notices
7 The
initiation of the administrative review for the above referenced case will be published in a separate initiation notice.
one of the above-named companies does not qualify for a separate rate, all other exporters of certain preserved mushrooms from the People’s Republic of China who have not qualified for a separate rate are deemed to be covered by this review as part of the single PRC entity of
which the named exporters are a part.
9 The initiation of the administrative review for the above referenced case will be published in a separate initiation notice.
8 If
During any administrative review
covering all or part of a period falling
between the first and second or third
and fourth anniversary of the
publication of an antidumping duty
order under section 351.211 or a
determination under section
351.218(f)(4) to continue an order or
suspended investigation (after sunset
review), the Secretary, if requested by a
domestic interested party within 30
days of the date of publication of the
notice of initiation of the review, will
determine, consistent with FAG Italia
v.United States, 291 F.3d 806 (Fed. Cir.
2002), as appropriate, whether
antidumping duties have been absorbed
by an exporter or producer subject to the
review if the subject merchandise is
sold in the United States through an
importer that is affiliated with such
exporter or producer. The request must
include the name(s) of the exporter or
producer for which the inquiry is
requested.
Interested parties must submit
applications for disclosure under
administrative protective orders in
accordance with 19 CFR 351.305.
These initiations and this notice are
in accordance with section 751(a) of the
Tariff Act of 1930, as amended (19
U.S.C. 1675(a)), and 19 CFR
351.221(c)(1)(i).
Dated: March 21, 2007.
Stephen J. Claeys,
Deputy Assistant Secretary for Import
Administration.
[FR Doc. E7–5689 Filed 3–27–07; 8:45 am]
Billing Code: 3510–DS–S
DEPARTMENT OF COMMERCE
International Trade Administration
A–570–504
Petroleum Wax Candles From the
People’s Republic of China: Partial
Termination of Circumvention Inquiry
and Affirmative Preliminary
Determination of Circumvention of the
Antidumping Duty Order
Import Administration,
International Trade Administration,
Department of Commerce.
ACTION: Notice of Partial Termination
and Affirmative Preliminary
Determination of Circumvention of the
Antidumping Duty Order: Petroleum
sroberts on PROD1PC70 with NOTICES
AGENCY:
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17:09 Mar 27, 2007
Jkt 211001
Wax Candles from the People’s Republic
of China.
SUMMARY: On December 14, 2005, the
Department of Commerce (the
Department) received from the National
Candle Association (NCA) an allegation
of circumvention of the antidumping
duty order on petroleum wax candles
from the People’s Republic of China
(PRC). Pursuant to that allegation, the
Department initiated an
anticircumvention inquiry on May 11,
2006, with respect to four importers. We
preliminarily determine that the
importation by, or sale to, three U.S.
importers (DECOR–WARE, Inc.; A&M
Wholesalers, Inc.; and Albert E. Price) of
wickless petroleum wax forms from the
PRC, which subsequently undergo
insertion of a wick and clip assembly in
the United States, constitutes
circumvention of the aforementioned
order, within the meaning of section
781(a) of the Tariff Act of 1930, as
amended (the Act). Because NCA
withdrew its allegation with respect to
the fourth importer, Northern Lights
Enterprises, the Department is
terminating the inquiry with respect to
Northern Lights Enterprises.
EFFECTIVE DATE: March 28, 2007.
FOR FURTHER INFORMATION CONTACT:
Steve Bezirganian or Robert James, AD/
CVD Operations, Office 7, Import
Administration, International Trade
Administration, U.S. Department of
Commerce, 14th Street and Constitution
Avenue, NW, Washington, DC, 20230;
telephone: 202–482–1131 and 202–482–
0649, respectively.
SUPPLEMENTARY INFORMATION:
Background
On December 14, 2005, the NCA
requested that the Department conduct
an anticircumvention inquiry pursuant
to section 781(a) of the Act to determine
whether candles assembled in the
United States from certain wax forms
produced in the PRC are circumventing
the antidumping duty order on
petroleum wax candles from the PRC.
See Antidumping Duty Order:
Petroleum Wax Candles From the
People’s Republic of China, 51 FR 30686
(August 28, 1986) (Candles Order). NCA
asserted that the molded or carved
articles of wax from the PRC are
essentially wickless wax candles, and
that producers in the PRC are shipping
these wickless wax forms to the United
States, with or without a pre-drilled
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hole in the center, for final assembly of
the candle through insertion of a wick
and clip assembly. Such assembly in the
United States, NCA stated, constitutes
circumvention of the order on
petroleum wax candles from the PRC.
See Request for Determination of
Circumvention - Wickless Wax Candles
Petroleum Wax Candles from the
People’s Republic of China (A–570–
504), dated December 14, 2005 (NCA
Request).
On April 3 and 4, 2006, NCA
supplemented the record with
additional information. The April 3,
2006, submission contained a revised
list of names of alleged PRC producers/
exporters and alleged U.S. importers/
assemblers of the wickless wax candles;
the April 4, 2006, submission contained
copies of Customs Tariff Classification
Rulings that NCA had identified in its
original December 14, 2005, request.
On May 11, 2006, the Department
initiated the anticircumvention inquiry
with respect to four importers. See
Petroleum Wax Candles from the
People’s Republic of China: Initiation of
Anticircumvention Inquiry on
Antidumping Duty Order, 71 FR 28661
(May 17, 2006) (Notice of Initiation).
The Department issued questionnaires
to each of the four importers: Northern
Lights Enterprises (on June 20, 2006);
A&M Wholesalers, Inc. (on June 20,
2006); DECOR–WARE, Inc. (on June 21,
2006); and Albert E. Price (on June 22,
2006). Responses to those
questionnaires were originally due on
July 11, 2006. Northern Lights
Enterprises requested, and was granted,
an extension for responding to the
original questionnaire, and submitted its
response on August 12, 2006. The
remaining three importers (DECOR–
WARE, Inc.; A&M Wholesalers, Inc.;
and Albert E. Price) failed to respond by
the deadline of July 11, 2006. Each of
these remaining three importers was
sent a letter on July 27, 2006, requesting
each to respond to the questionnaire by
July 31, 2006, and indicating that
further delays or lack of response may
result in the Department proceeding
with results based on facts available
including, where appropriate, facts
adverse to the importer. All three failed
to respond.
On May 17, 2006, the Department
indicated to NCA that any request to
add additional importers to the inquiry
needed to be filed by July 5, 2006. See
Memorandum from Robert James for the
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File, dated June 30, 2006. NCA
submitted a letter on July 5, 2006
requesting that the Department add to
the inquiry an entity identified as
Indulgence Candles and Home;
however, the request did not contain
sufficient evidence that the firm in
question was importing wax forms for
completion into finished candles in the
United States. On September 11, 2006,
NCA submitted a letter requesting that
the Department add to the inquiry an
entity identified as Deluxe in
Commerce.1
On February 21, 2007, NCA submitted
a letter withdrawing its request with
respect to Northern Lights Enterprises.
On March 2, 2007, the Department
extended the deadline for the final
determination to June 5, 2007. See
Letter from Robert James to All
Interested Parties, dated March 2, 2007.
Scope of the Order
The products covered by this order
are certain 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.
The products were classified in the
original investigation under the Tariff
Schedules of the United States item
755.25, Candles and Tapers. The
products covered are currently
classified under the Harmonized Tariff
Schedule of the United States (HTSUS)
subheading 3406.00.00. Although the
HTSUS subheading is provided for
convenience purposes, the written
description remains dispositive.
In addition, the Department has
determined that mixed–wax candles
containing any amount of petroleum
wax are later–developed merchandise
and are within the scope of the Candles
Order. See 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).
sroberts on PROD1PC70 with NOTICES
Scope of the Anticircumvention Inquiry
The products covered by this inquiry
are certain scented or unscented
petroleum wax forms that do not
incorporate a wick within the wax,
whether or not having pre–drilled wick
holes (wickless petroleum wax forms)
1 As this submission was untimely, the
Department did not consider adding Deluxe in
Commerce to this inquiry.
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that are imported into the United States
and assembled into petroleum wax
candles, and are currently classifiable
under HTSUS subheading 9602.00.40.
Wickless petroleum wax forms are sold
in the following shapes: tapers, spirals,
straight–sided wax forms; rounds,
columns, pillars, votives; and various
wax–filled containers. This inquiry only
covers such products that are imported
by, or sold to Northern Lights
Enterprises, DECOR–WARE, Inc., A&M
Wholesalers, Inc., or Albert E. Price.
Applicable Statute
Section 781 of the Act addresses
circumvention of antidumping or
countervailing duty orders. With respect
to merchandise assembled or completed
in the United States, section 781(a)(1) of
the Act provides that if: (A) the
merchandise sold in the United States is
of the same class or kind as any other
merchandise that is the subject of an
antidumping duty order; (B) such
merchandise sold in the United States is
completed or assembled in the United
States from parts or components
produced in the foreign country with
respect to which such order applies; (C)
the process of assembly or completion
in the United States is minor or
insignificant; and (D) the value of the
parts or components produced in the
foreign country is a significant portion
of the total value of the merchandise,
then the Department may include
within the scope of the order the
imported parts or components produced
in the foreign country used in the
completion or assembly of the
merchandise in the United States, after
taking into account any advice provided
by the United States International Trade
Commission (ITC) under section 781(e)
of the Act.
In determining whether the process of
assembly or completion in the United
States is minor or insignificant, section
781(a)(2) of the Act directs the
Department to consider: (A) the level of
investment; (B) the level of research and
development; (C) the nature of the
production process; (D) the extent of
production facilities and (E) whether the
value of processing performed in the
United States represents a small
proportion of the value of the
merchandise sold in the United States.
Section 781(a)(3) sets forth the factors
to consider in determining whether to
include parts or components in an
antidumping duty order. The
Department shall take into account: (A)
the pattern of trade, including sourcing
patterns; (B) whether the manufacturer
or exporter of the parts or components
is affiliated with the person who
assembles or completes the merchandise
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sold in the United States; and (C)
whether imports into the United States
of the parts or components produced in
the foreign country have increased after
the initiation of the investigation which
resulted in the issuance of the order.
Partial Termination of the
Anticircumvention Inquiry
As noted above, NCA withdrew its
inquiry request with respect to Northern
Lights Enterprises. Accordingly, we are
terminating this inquiry with respect to
Northern Lights Enterprises. Regarding
the remaining three importers (DECOR–
WARE, Inc.; A&M Wholesalers, Inc.;
and Albert E. Price), see the Facts
Available section below.
Affirmative Preliminary Determination
of Circumvention
For the reasons described below, we
preliminarily determine that
circumvention of the antidumping duty
order on petroleum wax candles from
the PRC is occurring by reason of
exports of wickless petroleum wax
forms from the PRC imported by, or sold
to, DECOR–WARE, Inc., A&M
Wholesalers, Inc., and Albert E. Price,
and which subsequently undergo
insertion of a wick and clip assembly in
the United States.
Facts Available
DECOR–WARE, Inc., A&M
Wholesalers, Inc., and Albert E. Price
failed to respond to the Department’s
requests for information. The
questionnaires the Department issued to
these importers were designed to elicit
information for purposes of conducting
both qualitative and quantitative
analyses in accordance with the criteria
enumerated in section 781(a) of the Act
as outlined above. This approach is
consistent with our analysis in previous
anticircumvention inquiries. See, e.g.,
Circumvention and Scope Inquiries on
the Antidumping Duty Order on Certain
Frozen Fish Fillets from the Socialist
Republic of Vietnam: Partial Affirmative
Final Determination of Circumvention
of the Antidumping Duty Order, Partial
Final Termination of Circumvention
Inquiry and Final Rescission of Scope
Inquiry, 71 FR 38608 (July 7, 2006);
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 (July 26, 1999).
Without this information the
Department has no choice but to resort
to the use of facts available in making
its determination pursuant to section
776(a)(2) of the Act. In selecting from
among the facts available, the
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Department determined that an adverse
inference is warranted, pursuant to
section 776(b) of the Act, because these
importers failed to comply with the
Department’s requests for information to
the best of their ability.
Section 776(a) of the Act requires the
Department to resort to facts otherwise
available if necessary information is not
available on the record or when an
interested party or any other person 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. See sections
776(a)(1) and 776(a)(2)(B) of the Act. As
provided in section 782(c)(1) of the Act,
if an interested party, promptly after
receiving a request from the Department
for information, notifies the Department
that such party is unable to submit the
information requested in the requested
form and manner, the Department may
modify the requirements to avoid
imposing an unreasonable burden on
that party. However, neither DECOR–
WARE, Inc., A&M Wholesalers, Inc., nor
Albert E. Price notified the Department
that they were unable to comply with
the Department’s requests.
Consequently, because these importers
failed to respond to the Department’s
questionnaire, we must base the
preliminary determination in this
inquiry on the facts otherwise available.
Section 776(b) of the Act permits the
Department to use an inference that is
adverse to the interests of an interested
party if that party fails to cooperate by
not acting to the best of its ability to
comply with a request for information.
Because DECOR–WARE, Inc., A&M
Wholesalers, Inc., and Albert E. Price
refused to comply with the
Department’s request for information,
we find that these importers failed to
cooperate by not acting to the best of
their ability. The refusals by DECOR–
WARE, Inc., A&M Wholesalers, Inc.,
and Albert E. Price to respond to our
questionnaire precludes the Department
from making an informed determination
based on record evidence as to whether
they are (or are not) circumventing the
antidumping duty order. In addition,
because these importers failed to
provide the Department with any
information, we are also unable to
distinguish between their imports or
purchase of wickless petroleum wax
forms for purposes other than U.S.
assembly into merchandise covered by
the Candles Order. Accordingly, we are
making an adverse inference pursuant to
section 776(b) of the Act that wickless
petroleum wax forms imported by, or
sold to, DECOR–WARE, Inc., A&M
Wholesalers, Inc., and Albert E. Price
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are completed or assembled in the
United States by the insertion of a wick
and clip assembly within the meaning
of section 781(a) of the Act. Therefore,
we preliminarily find that these
wickless petroleum wax forms are
subject merchandise.
Section 776(c) of the Act provides
that, when the Department relies on
secondary information rather than on
information obtained in the course of an
investigation or review, the Department
shall, to the extent practicable,
corroborate that information from
independent sources that are reasonably
at its disposal. The Statement of
Administrative Action (SAA), which
accompanied the Uruguay Round
Agreements Act, H.R. Doc. No. 316,
103rd Congress, 2nd Session (1994),
states that the independent sources may
include published price lists, official
import statistics and customs data, and
information obtained from interested
parties during the investigation or
review. SAA at 870. The SAA also
clarifies that ‘‘corroborate’’ means that
the Department will satisfy itself that
the secondary information to be used
has probative value. Id. To the extent
practicable, the Department will
examine the reliability and relevance of
the information used. See, e.g.,
Circumvention and Scope Inquiries on
the Antidumping Duty Order on Certain
Frozen Fish Fillets from the Socialist
Republic of Vietnam: Partial Affirmative
Final Determination of Circumvention
of the Antidumping Duty Order, Partial
Final Termination of Circumvention
Inquiry and Final Rescission of Scope
Inquiry, 71 FR 38608 (July 7, 2006) and
accompanying decision memorandum,
dated June 30, 2006 (at Comment 2B).
We reviewed all information on the
record including NCA’s December 14,
2005, application for this
anticircumvention inquiry, its
subsequent submissions, and the
Department’s initiation of this inquiry.
See Notice of Initiation. NCA presented
information demonstrating an increase
in imports of wax forms that may be
used in the assembly of finished candles
within the United States. Id. NCA also
provided evidence that the wick and
clip assembly process in the United
States is minor or insignificant. Id.
Although NCA did not have direct and
specific information from U.S.
assemblers, it was able to provide
information based on the actual
experience of its constituent members,
U.S. domestic candle producers, that
provided significant information on
wick and clip assembly in particular,
and commercial candle production in
general. Id. With respect to whether the
value of the parts or components
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produced in the PRC (the wickless
petroleum wax forms) is a significant
portion of the total value of the candle,
NCA was able to provide information
from the domestic candle industry
indicating the value of the wax form is
typically a significant portion of the
total value of the finished candle.2
Thus, we conclude that NCA identified
the elements required by 781(a) of the
Act and supported its allegations with
reliable and relevant information that
continue to be of probative value.
Suspension Of Liquidation
Section 351.225(l)(2) of the
Department’s regulations states that,
‘‘{i}f the Secretary issues a preliminary
scope ruling under paragraph (f)(3)’’ and
‘‘{i}f liquidation has not been
suspended, the Secretary will instruct
the Customs Service to suspend
liquidation and to require a cash deposit
of estimated duties, at the applicable
rate, for each unliquidated entry of the
product entered, or withdrawn from
warehouse, for consumption on or after
the date of initiation of the scope
inquiry.’’ In accordance with section
351.225(l)(2) of the Department’s
regulations, we will instruct U.S.
Customs and Border Protection (CBP) to
suspend liquidation of all wickless
petroleum wax forms (as defined in the
Scope of the Anticircumvention Inquiry
section above) from the People’s
Republic of China imported by, or sold
to DECOR–WARE, Inc., A&M
Wholesalers, Inc., or Albert E. Price that
were entered, or withdrawn from
warehouse, for consumption on or after
May 11, 2006, the date of initiation of
this anticircumvention inquiry. See
Anti–circumvention Inquiry of the
Antidumping Duty Order on Certain
Pasta From Italy: Affirmative
Preliminary Determination of
Circumvention of the Antidumping Duty
Order, 63 FR 18364, 18366 (April 15,
1998); Anti–Circumvention Inquiry of
the Antidumping Duty Order on Certain
Pasta From Italy: Affirmative Final
Determination of Circumvention of the
Antidumping Duty Order, 63 FR 54672,
54675–6 (October 13, 1998). CBP shall
require cash deposits in accordance
with those rates prevailing at the time
of entry, depending upon the exporter
in question.
2 Id. NCA did acknowledge, in its February 21,
2007, letter withdrawing its request with respect to
the importer Northern Lights Enterprises, that this
importer ‘‘does more than just drill a hole and
insert a wick’’ in the imported wickless petroleum
wax forms.
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Federal Register / Vol. 72, No. 59 / Wednesday, March 28, 2007 / Notices
Notification to the International Trade
Commission
The Department, consistent with
section 781(e) of the Act, is notifying the
ITC of this affirmative preliminary
determination to include the
merchandise subject to this inquiry
within the antidumping duty order on
petroleum wax candles from the PRC.
Pursuant to section 781(e) of the Act,
the ITC may request consultations
concerning the Department’s proposed
inclusion of the subject merchandise.
These consultations must be concluded
within 15 days after the date of the
request. If, after consultations, the ITC
believes that a significant injury issue is
presented by the proposed inclusion, it
will have 60 days to provide written
advice to the Department.
Public Comment
Interested parties may request a
hearing within 10 days from the date of
publication of this notice. Comments
from interested parties may be
submitted no later than 20 days from the
publication of this notice. Rebuttals
limited to issues raised in the initial
comments may be filed no later than 27
days after publication of this notice.
Any hearing, if requested, will be held
no later than 34 days after publication
of this notice. The Department will
publish the final determination with
respect to this anticircumvention
inquiry, including the results of its
analysis of any written comments. The
deadline for the final determination is
currently June 5, 2007. See Letter from
Robert James to All Interested Parties,
dated March 2, 2007.
This affirmative preliminary
circumvention determination is in
accordance with section 781(a) of the
Act and 19 CFR 351.225.
Dated: March 22, 2007.
David M. Spooner,
Assistant Secretary for Import
Administration.
[FR Doc. E7–5691 Filed 3–27–07; 8:45 am]
BILLING CODE 3510–DS–S
DEPARTMENT OF COMMERCE
International Trade Administration
sroberts on PROD1PC70 with NOTICES
A–570–504
Petroleum Wax Candles from the
People’s Republic of China: Initiation
of New Shipper Review
Import Administration,
International Trade Administration,
Department of Commerce.
EFFECTIVE DATE: March 28, 2007.
SUMMARY: The Department of Commerce
(the ‘‘Department’’) has determined that
a request for a new shipper review of
the antidumping duty order on
petroleum wax candles from the
People’s Republic of China (‘‘PRC’’),
received before February 28, 2007,
meets the statutory and regulatory
requirements for initiation. The period
of review (‘‘POR’’) of this new shipper
review is August 1, 2006, through
January 31, 2007.
FOR FURTHER INFORMATION CONTACT:
Nicole Bankhead, AD/CVD Operations,
Office 9, Import Administration,
International Trade Administration,
U.S. Department of Commerce, 14th
Street and Constitution Avenue, NW,
Washington, DC 20230; telephone: (202)
482–9068.
SUPPLEMENTARY INFORMATION:
Background
The notice announcing the
antidumping duty order on petroleum
wax candles from the PRC published in
the Federal Register on August 28,
1986. See Antidumping Duty Order:
Petroleum Wax Candles From the
People’s Republic of China, 51 FR 30686
(August 28, 1986).1 On February 16,
2007, pursuant to 19 CFR 351.214(c),
the Department received a new shipper
review request from Hangzhou Fashion
Living Co., Ltd (‘‘Fashion Living’’). On
March 7, 2007, the Department
requested that Fashion Living correct
certain filing deficiencies. See the
Department’s letter dated March 7,
2007. On March 8, 2007, Fashion Living
resubmitted its new shipper request.
Fashion Living certified that it is both
the producer and exporter of the subject
merchandise upon which the request for
a new shipper review is based.
Pursuant to section 751(a)(2)(B)(i)(I) of
the Tariff Act of 1930, as amended (‘‘the
Act’’), and 19 CFR 351.214(b)(2)(i),
Fashion Living certified that it did not
export petroleum wax candles to the
United States during the period of
investigation (‘‘POI’’). In addition,
pursuant to section 751(a)(2)(B)(i)(II) of
the Act and 19 CFR 351.214(b)(2)(iii)(A),
Fashion Living certified that, since the
initiation of the investigation, it has
never been affiliated with any PRC
exporter or producer who exported
petroleum wax candles to the United
States during the POI, including those
not individually examined during the
investigation. As required by 19 CFR
351.214(b)(2)(iii)(B), Fashion Living also
certified that its export activities were
14521
not controlled by the central
government of the PRC.
In addition to the certifications
described above, pursuant to 19 CFR
351.214(b)(2)(iv), Fashion Living
submitted documentation establishing
the following: (1) the date on which
Fashion Living first shipped petroleum
wax candles for export to the United
States and the date on which the
petroleum wax candles were first
entered, or withdrawn from warehouse,
for consumption; (2) the volume of its
first shipment; 2 and (3) the date of its
first sale to an unaffiliated customer in
the United States.
The Department conducted customs
database queries to confirm that Fashion
Living’s shipment of subject
merchandise had entered the United
States for consumption and had been
suspended for antidumping duties. We
confirmed that Fashion Living’s
shipment had entered for consumption
and been suspended for antidumping
duties.
Initiation of New Shipper Review
Pursuant to section 751(a)(2)(B) of the
Act and 19 CFR 351.214(d)(1), the
Department finds that Fashion Living’s
request meets the threshold
requirements for initiation of a new
shipper review for the shipment of
petroleum wax candles from the PRC it
produced and exported. See Memo to
the File from Nicole Bankhead, Senior
Case Analyst, through Alex Villanueva,
Program Manager, Office 9: New
Shipper Review Initiation Checklist,
dated March 19, 2007.
The POR for this new shipper review
is August 1, 2006, through January 31,
2007. See 19 CFR 351.214(g)(1)(ii)(B).
The Department intends to issue the
preliminary results of this review no
later than 180 days from the date of
initiation, and final results of this
review no later than 270 days from the
date of initiation. See section
751(a)(2)(B)(iv) of the Act.
Interested parties requiring access to
proprietary information in this new
shipper review should submit
applications for disclosure under
administrative protective order in
accordance with 19 CFR 351.305 and
351.306. This initiation and notice are
published in accordance with section
751(a)(2)(B) of the Act and 19 CFR
351.214 and 351.221(c)(1)(i).
AGENCY:
VerDate Aug<31>2005
18:07 Mar 27, 2007
Jkt 211001
1 Therefore, a request for a new shipper review
based on the semiannual anniversary month,
February, was due to the Department by February
28, 2007. See 19 CFR 351.214(d)(2).
PO 00000
Frm 00007
Fmt 4703
Sfmt 4703
2 Fashion Living made no subsequent shipments
to the United States, which the Department
corroborated using data from U.S. Customs and
Border Protection.
E:\FR\FM\28MRN1.SGM
28MRN1
]]>Agencies
[Federal Register Volume 72, Number 59 (Wednesday, March 28, 2007)]
[Notices]
[Pages 14518-14521]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-5691]
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DEPARTMENT OF COMMERCE
International Trade Administration
A-570-504
Petroleum Wax Candles From the People's Republic of China:
Partial Termination of Circumvention Inquiry and Affirmative
Preliminary Determination of Circumvention of the Antidumping Duty
Order
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Notice of Partial Termination and Affirmative Preliminary
Determination of Circumvention of the Antidumping Duty Order: Petroleum
Wax Candles from the People's Republic of China.
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SUMMARY: On December 14, 2005, the Department of Commerce (the
Department) received from the National Candle Association (NCA) an
allegation of circumvention of the antidumping duty order on petroleum
wax candles from the People's Republic of China (PRC). Pursuant to that
allegation, the Department initiated an anticircumvention inquiry on
May 11, 2006, with respect to four importers. We preliminarily
determine that the importation by, or sale to, three U.S. importers
(DECOR-WARE, Inc.; A&M Wholesalers, Inc.; and Albert E. Price) of
wickless petroleum wax forms from the PRC, which subsequently undergo
insertion of a wick and clip assembly in the United States, constitutes
circumvention of the aforementioned order, within the meaning of
section 781(a) of the Tariff Act of 1930, as amended (the Act). Because
NCA withdrew its allegation with respect to the fourth importer,
Northern Lights Enterprises, the Department is terminating the inquiry
with respect to Northern Lights Enterprises.
EFFECTIVE DATE: March 28, 2007.
FOR FURTHER INFORMATION CONTACT: Steve Bezirganian or Robert James, AD/
CVD Operations, Office 7, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW, Washington, DC, 20230; telephone: 202-482-1131
and 202-482-0649, respectively.
SUPPLEMENTARY INFORMATION:
Background
On December 14, 2005, the NCA requested that the Department conduct
an anticircumvention inquiry pursuant to section 781(a) of the Act to
determine whether candles assembled in the United States from certain
wax forms produced in the PRC are circumventing the antidumping duty
order on petroleum wax candles from the PRC. See Antidumping Duty
Order: Petroleum Wax Candles From the People's Republic of China, 51 FR
30686 (August 28, 1986) (Candles Order). NCA asserted that the molded
or carved articles of wax from the PRC are essentially wickless wax
candles, and that producers in the PRC are shipping these wickless wax
forms to the United States, with or without a pre-drilled hole in the
center, for final assembly of the candle through insertion of a wick
and clip assembly. Such assembly in the United States, NCA stated,
constitutes circumvention of the order on petroleum wax candles from
the PRC. See Request for Determination of Circumvention - Wickless Wax
Candles Petroleum Wax Candles from the People's Republic of China (A-
570-504), dated December 14, 2005 (NCA Request).
On April 3 and 4, 2006, NCA supplemented the record with additional
information. The April 3, 2006, submission contained a revised list of
names of alleged PRC producers/exporters and alleged U.S. importers/
assemblers of the wickless wax candles; the April 4, 2006, submission
contained copies of Customs Tariff Classification Rulings that NCA had
identified in its original December 14, 2005, request.
On May 11, 2006, the Department initiated the anticircumvention
inquiry with respect to four importers. See Petroleum Wax Candles from
the People's Republic of China: Initiation of Anticircumvention Inquiry
on Antidumping Duty Order, 71 FR 28661 (May 17, 2006) (Notice of
Initiation).
The Department issued questionnaires to each of the four importers:
Northern Lights Enterprises (on June 20, 2006); A&M Wholesalers, Inc.
(on June 20, 2006); DECOR-WARE, Inc. (on June 21, 2006); and Albert E.
Price (on June 22, 2006). Responses to those questionnaires were
originally due on July 11, 2006. Northern Lights Enterprises requested,
and was granted, an extension for responding to the original
questionnaire, and submitted its response on August 12, 2006. The
remaining three importers (DECOR-WARE, Inc.; A&M Wholesalers, Inc.; and
Albert E. Price) failed to respond by the deadline of July 11, 2006.
Each of these remaining three importers was sent a letter on July 27,
2006, requesting each to respond to the questionnaire by July 31, 2006,
and indicating that further delays or lack of response may result in
the Department proceeding with results based on facts available
including, where appropriate, facts adverse to the importer. All three
failed to respond.
On May 17, 2006, the Department indicated to NCA that any request
to add additional importers to the inquiry needed to be filed by July
5, 2006. See Memorandum from Robert James for the
[[Page 14519]]
File, dated June 30, 2006. NCA submitted a letter on July 5, 2006
requesting that the Department add to the inquiry an entity identified
as Indulgence Candles and Home; however, the request did not contain
sufficient evidence that the firm in question was importing wax forms
for completion into finished candles in the United States. On September
11, 2006, NCA submitted a letter requesting that the Department add to
the inquiry an entity identified as Deluxe in Commerce.\1\
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\1\ As this submission was untimely, the Department did not
consider adding Deluxe in Commerce to this inquiry.
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On February 21, 2007, NCA submitted a letter withdrawing its
request with respect to Northern Lights Enterprises. On March 2, 2007,
the Department extended the deadline for the final determination to
June 5, 2007. See Letter from Robert James to All Interested Parties,
dated March 2, 2007.
Scope of the Order
The products covered by this order are certain 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.
The products were classified in the original investigation under
the Tariff Schedules of the United States item 755.25, Candles and
Tapers. The products covered are currently classified under the
Harmonized Tariff Schedule of the United States (HTSUS) subheading
3406.00.00. Although the HTSUS subheading is provided for convenience
purposes, the written description remains dispositive.
In addition, the Department has determined that mixed-wax candles
containing any amount of petroleum wax are later-developed merchandise
and are within the scope of the Candles Order. See 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).
Scope of the Anticircumvention Inquiry
The products covered by this inquiry are certain scented or
unscented petroleum wax forms that do not incorporate a wick within the
wax, whether or not having pre-drilled wick holes (wickless petroleum
wax forms) that are imported into the United States and assembled into
petroleum wax candles, and are currently classifiable under HTSUS
subheading 9602.00.40. Wickless petroleum wax forms are sold in the
following shapes: tapers, spirals, straight-sided wax forms; rounds,
columns, pillars, votives; and various wax-filled containers. This
inquiry only covers such products that are imported by, or sold to
Northern Lights Enterprises, DECOR-WARE, Inc., A&M Wholesalers, Inc.,
or Albert E. Price.
Applicable Statute
Section 781 of the Act addresses circumvention of antidumping or
countervailing duty orders. With respect to merchandise assembled or
completed in the United States, section 781(a)(1) of the Act provides
that if: (A) the merchandise sold in the United States is of the same
class or kind as any other merchandise that is the subject of an
antidumping duty order; (B) such merchandise sold in the United States
is completed or assembled in the United States from parts or components
produced in the foreign country with respect to which such order
applies; (C) the process of assembly or completion in the United States
is minor or insignificant; and (D) the value of the parts or components
produced in the foreign country is a significant portion of the total
value of the merchandise, then the Department may include within the
scope of the order the imported parts or components produced in the
foreign country used in the completion or assembly of the merchandise
in the United States, after taking into account any advice provided by
the United States International Trade Commission (ITC) under section
781(e) of the Act.
In determining whether the process of assembly or completion in the
United States is minor or insignificant, section 781(a)(2) of the Act
directs the Department to consider: (A) the level of investment; (B)
the level of research and development; (C) the nature of the production
process; (D) the extent of production facilities and (E) whether the
value of processing performed in the United States represents a small
proportion of the value of the merchandise sold in the United States.
Section 781(a)(3) sets forth the factors to consider in determining
whether to include parts or components in an antidumping duty order.
The Department shall take into account: (A) the pattern of trade,
including sourcing patterns; (B) whether the manufacturer or exporter
of the parts or components is affiliated with the person who assembles
or completes the merchandise sold in the United States; and (C) whether
imports into the United States of the parts or components produced in
the foreign country have increased after the initiation of the
investigation which resulted in the issuance of the order.
Partial Termination of the Anticircumvention Inquiry
As noted above, NCA withdrew its inquiry request with respect to
Northern Lights Enterprises. Accordingly, we are terminating this
inquiry with respect to Northern Lights Enterprises. Regarding the
remaining three importers (DECOR-WARE, Inc.; A&M Wholesalers, Inc.; and
Albert E. Price), see the Facts Available section below.
Affirmative Preliminary Determination of Circumvention
For the reasons described below, we preliminarily determine that
circumvention of the antidumping duty order on petroleum wax candles
from the PRC is occurring by reason of exports of wickless petroleum
wax forms from the PRC imported by, or sold to, DECOR-WARE, Inc., A&M
Wholesalers, Inc., and Albert E. Price, and which subsequently undergo
insertion of a wick and clip assembly in the United States.
Facts Available
DECOR-WARE, Inc., A&M Wholesalers, Inc., and Albert E. Price failed
to respond to the Department's requests for information. The
questionnaires the Department issued to these importers were designed
to elicit information for purposes of conducting both qualitative and
quantitative analyses in accordance with the criteria enumerated in
section 781(a) of the Act as outlined above. This approach is
consistent with our analysis in previous anticircumvention inquiries.
See, e.g., Circumvention and Scope Inquiries on the Antidumping Duty
Order on Certain Frozen Fish Fillets from the Socialist Republic of
Vietnam: Partial Affirmative Final Determination of Circumvention of
the Antidumping Duty Order, Partial Final Termination of Circumvention
Inquiry and Final Rescission of Scope Inquiry, 71 FR 38608 (July 7,
2006); 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 (July 26,
1999).
Without this information the Department has no choice but to resort
to the use of facts available in making its determination pursuant to
section 776(a)(2) of the Act. In selecting from among the facts
available, the
[[Page 14520]]
Department determined that an adverse inference is warranted, pursuant
to section 776(b) of the Act, because these importers failed to comply
with the Department's requests for information to the best of their
ability.
Section 776(a) of the Act requires the Department to resort to
facts otherwise available if necessary information is not available on
the record or when an interested party or any other person 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. See sections 776(a)(1) and 776(a)(2)(B)
of the Act. As provided in section 782(c)(1) of the Act, if an
interested party, promptly after receiving a request from the
Department for information, notifies the Department that such party is
unable to submit the information requested in the requested form and
manner, the Department may modify the requirements to avoid imposing an
unreasonable burden on that party. However, neither DECOR-WARE, Inc.,
A&M Wholesalers, Inc., nor Albert E. Price notified the Department that
they were unable to comply with the Department's requests.
Consequently, because these importers failed to respond to the
Department's questionnaire, we must base the preliminary determination
in this inquiry on the facts otherwise available.
Section 776(b) of the Act permits the Department to use an
inference that is adverse to the interests of an interested party if
that party fails to cooperate by not acting to the best of its ability
to comply with a request for information. Because DECOR-WARE, Inc., A&M
Wholesalers, Inc., and Albert E. Price refused to comply with the
Department's request for information, we find that these importers
failed to cooperate by not acting to the best of their ability. The
refusals by DECOR-WARE, Inc., A&M Wholesalers, Inc., and Albert E.
Price to respond to our questionnaire precludes the Department from
making an informed determination based on record evidence as to whether
they are (or are not) circumventing the antidumping duty order. In
addition, because these importers failed to provide the Department with
any information, we are also unable to distinguish between their
imports or purchase of wickless petroleum wax forms for purposes other
than U.S. assembly into merchandise covered by the Candles Order.
Accordingly, we are making an adverse inference pursuant to section
776(b) of the Act that wickless petroleum wax forms imported by, or
sold to, DECOR-WARE, Inc., A&M Wholesalers, Inc., and Albert E. Price
are completed or assembled in the United States by the insertion of a
wick and clip assembly within the meaning of section 781(a) of the Act.
Therefore, we preliminarily find that these wickless petroleum wax
forms are subject merchandise.
Section 776(c) of the Act provides that, when the Department relies
on secondary information rather than on information obtained in the
course of an investigation or review, the Department shall, to the
extent practicable, corroborate that information from independent
sources that are reasonably at its disposal. The Statement of
Administrative Action (SAA), which accompanied the Uruguay Round
Agreements Act, H.R. Doc. No. 316, 103rd Congress, 2nd Session (1994),
states that the independent sources may include published price lists,
official import statistics and customs data, and information obtained
from interested parties during the investigation or review. SAA at 870.
The SAA also clarifies that ``corroborate'' means that the Department
will satisfy itself that the secondary information to be used has
probative value. Id. To the extent practicable, the Department will
examine the reliability and relevance of the information used. See,
e.g., Circumvention and Scope Inquiries on the Antidumping Duty Order
on Certain Frozen Fish Fillets from the Socialist Republic of Vietnam:
Partial Affirmative Final Determination of Circumvention of the
Antidumping Duty Order, Partial Final Termination of Circumvention
Inquiry and Final Rescission of Scope Inquiry, 71 FR 38608 (July 7,
2006) and accompanying decision memorandum, dated June 30, 2006 (at
Comment 2B).
We reviewed all information on the record including NCA's December
14, 2005, application for this anticircumvention inquiry, its
subsequent submissions, and the Department's initiation of this
inquiry. See Notice of Initiation. NCA presented information
demonstrating an increase in imports of wax forms that may be used in
the assembly of finished candles within the United States. Id. NCA also
provided evidence that the wick and clip assembly process in the United
States is minor or insignificant. Id. Although NCA did not have direct
and specific information from U.S. assemblers, it was able to provide
information based on the actual experience of its constituent members,
U.S. domestic candle producers, that provided significant information
on wick and clip assembly in particular, and commercial candle
production in general. Id. With respect to whether the value of the
parts or components produced in the PRC (the wickless petroleum wax
forms) is a significant portion of the total value of the candle, NCA
was able to provide information from the domestic candle industry
indicating the value of the wax form is typically a significant portion
of the total value of the finished candle.\2\ Thus, we conclude that
NCA identified the elements required by 781(a) of the Act and supported
its allegations with reliable and relevant information that continue to
be of probative value.
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\2\ Id. NCA did acknowledge, in its February 21, 2007, letter
withdrawing its request with respect to the importer Northern Lights
Enterprises, that this importer ``does more than just drill a hole
and insert a wick'' in the imported wickless petroleum wax forms.
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Suspension Of Liquidation
Section 351.225(l)(2) of the Department's regulations states that,
``{i{time} f the Secretary issues a preliminary scope ruling under
paragraph (f)(3)'' and ``{i{time} f liquidation has not been suspended,
the Secretary will instruct the Customs Service to suspend liquidation
and to require a cash deposit of estimated duties, at the applicable
rate, for each unliquidated entry of the product entered, or withdrawn
from warehouse, for consumption on or after the date of initiation of
the scope inquiry.'' In accordance with section 351.225(l)(2) of the
Department's regulations, we will instruct U.S. Customs and Border
Protection (CBP) to suspend liquidation of all wickless petroleum wax
forms (as defined in the Scope of the Anticircumvention Inquiry section
above) from the People's Republic of China imported by, or sold to
DECOR-WARE, Inc., A&M Wholesalers, Inc., or Albert E. Price that were
entered, or withdrawn from warehouse, for consumption on or after May
11, 2006, the date of initiation of this anticircumvention inquiry. See
Anti-circumvention Inquiry of the Antidumping Duty Order on Certain
Pasta From Italy: Affirmative Preliminary Determination of
Circumvention of the Antidumping Duty Order, 63 FR 18364, 18366 (April
15, 1998); Anti-Circumvention Inquiry of the Antidumping Duty Order on
Certain Pasta From Italy: Affirmative Final Determination of
Circumvention of the Antidumping Duty Order, 63 FR 54672, 54675-6
(October 13, 1998). CBP shall require cash deposits in accordance with
those rates prevailing at the time of entry, depending upon the
exporter in question.
[[Page 14521]]
Notification to the International Trade Commission
The Department, consistent with section 781(e) of the Act, is
notifying the ITC of this affirmative preliminary determination to
include the merchandise subject to this inquiry within the antidumping
duty order on petroleum wax candles from the PRC. Pursuant to section
781(e) of the Act, the ITC may request consultations concerning the
Department's proposed inclusion of the subject merchandise. These
consultations must be concluded within 15 days after the date of the
request. If, after consultations, the ITC believes that a significant
injury issue is presented by the proposed inclusion, it will have 60
days to provide written advice to the Department.
Public Comment
Interested parties may request a hearing within 10 days from the
date of publication of this notice. Comments from interested parties
may be submitted no later than 20 days from the publication of this
notice. Rebuttals limited to issues raised in the initial comments may
be filed no later than 27 days after publication of this notice. Any
hearing, if requested, will be held no later than 34 days after
publication of this notice. The Department will publish the final
determination with respect to this anticircumvention inquiry, including
the results of its analysis of any written comments. The deadline for
the final determination is currently June 5, 2007. See Letter from
Robert James to All Interested Parties, dated March 2, 2007.
This affirmative preliminary circumvention determination is in
accordance with section 781(a) of the Act and 19 CFR 351.225.
Dated: March 22, 2007.
David M. Spooner,
Assistant Secretary for Import Administration.
[FR Doc. E7-5691 Filed 3-27-07; 8:45 am]
BILLING CODE 3510-DS-S
