Petroleum Wax Candles from the People's Republic of China: Affirmative Final Determination of Circumvention of the Antidumping Duty Order, 31053-31055 [E7-10781]
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Federal Register / Vol. 72, No. 107 / Tuesday, June 5, 2007 / Notices
751(c)(3)(A) and published pursuant to
section 777(i)(1) of the Act.
Dated: May 25, 2007.
David M. Spooner,
Assistant Secretary for Import
Administration.
[FR Doc. E7–10779 Filed 6–4–07; 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:
Affirmative Final Determination of
Circumvention of the Antidumping
Duty Order
Import Administration,
International Trade Administration,
Department of Commerce.
ACTION: Notice of Affirmative Final
Determination of Circumvention of the
Antidumping Duty Order: Petroleum
Wax Candles from the People’s Republic
of China.
jlentini on PROD1PC65 with NOTICES
AGENCY:
SUMMARY: On March 28, 2007, the
Department of Commerce (the
Department) published its preliminary
determination 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 antidumping duty
order on petroleum wax candles from
the People’s Republic of China (see
Antidumping Duty Order: Petroleum
Wax Candles From the People’s
Republic of China, 51 FR 30686 (August
28, 1986) (Candles Order)), within the
meaning of section 781(a) of the Tariff
Act of 1930, as amended (the Act). See
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, 72 FR 14518
(March 28, 2007) (Preliminary
Determination). We gave interested
parties an opportunity to comment on
the Preliminary Determination, and
notified the United States International
Trade Commission (ITC) because,
pursuant to section 781(e) of the Act,
the ITC may request consultations
concerning the Department’s proposed
inclusion of the subject merchandise.
The ITC notified the Department on
April 24, 2007, that consultations were
not necessary. The National Candle
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17:28 Jun 04, 2007
Jkt 211001
Association (NCA), the petitioners in
this proceeding, filed the circumvention
allegation, submitted a case brief, and
no parties submitted rebuttal briefs. The
Department addresses the issue raised
in the case brief, and the Department’s
final determination is unchanged from
its preliminary determination.
EFFECTIVE DATE: June 5, 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 March 28, 2007, the Department of
Commerce (the Department) published
its preliminary determination 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 constitutes circumvention of the
aforementioned order, within the
meaning of section 781(a) of the Tariff
Act of 1930, as amended (the Act). See
Preliminary Determination, 72 FR
14518. On April 24, 2007, the
Department was notified by the ITC that
consultations pursuant to section
781(e)(2) of the Act were not necessary.
See Memorandum to the File from Steve
Bezirganian, dated May 9, 2007. The
NCA is the only interested party that
filed a case brief.
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
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Fmt 4703
Sfmt 4703
31053
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 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 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
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31054
Federal Register / Vol. 72, No. 107 / Tuesday, June 5, 2007 / Notices
jlentini on PROD1PC65 with NOTICES
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) of the Act 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.
Analysis
We have analyzed the comment of
NCA, namely, that the Department’s
precedent requires the Department to
use an inference that is adverse to the
interests of the three respondents that
did not respond to our requests for
information because they failed to
cooperate by not acting to the best of
their ability, and that the Department
should apply an adverse rate of 108.30
percent (the PRC–wide rate) for each of
the three respondent importers.
The Department agrees with NCA that
adverse facts available (AFA) is
appropriate for DECOR–WARE, Inc.,
A&M Wholesalers, Inc., and Albert E.
Price. Pursuant to sections 776(a) and
776(b) of the Act, the Department
applied adverse facts available for those
respondents in its Preliminary
Determination because these
respondents did not provide responses
to the Department’s requests for
information, and the Department
determined that these respondents
failed to cooperate to the best of their
ability. The Preliminary Determination
states, in pertinent part:
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
VerDate Aug<31>2005
17:28 Jun 04, 2007
Jkt 211001
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.
See Preliminary Determination, 72 FR at
14520. The Department’s adverse
inference is that all such wickless
petroleum wax forms imported by, or
sold to, the three respondents ultimately
are completed or assembled in the
United States by the insertion of a wick
and clip assembly.
With respect to the cash deposit rate
to be used for entries of wickless
petroleum wax forms imported by, or
sold to, the three respondents in
question, the Department’s preliminary
determination indicated that Customs
and Border Protection (CBP) ‘‘shall
require cash deposits in accordance
with those rates prevailing at the time
of entry, depending upon the exporter
in question.’’ See Preliminary
Determination, 72 FR at 14520. As
noted, the adverse inference is that all
of the wickless petroleum wax candles
imported by, or sold to, the three
respondents in question are covered by
the scope.
With respect to NCA’s request that the
Department assign an AFA rate to the
three respondents, we note that the
purpose of an anticircumvention
proceeding is to determine whether the
importation of the product in question
(wickless petroleum wax forms) is
evading or circumventing the Candles
Order (see section 781 of the Act, and
19 CFR 351.225(a) and (g)). Other
provisions of the statute, namely those
in section 751 of the Act, provide for the
periodic determination of antidumping
duty rates for specific exporters/
producers.
Assigning importer–specific cash
deposit rates would constitute a change
to the cash deposit rates for the parties
subject to an order (i.e., exporters and
producers), and the cash deposit rate of
a company subject to an order is only
changed as the result of a new shipper
review or an administrative review (see
Certain Hot–Rolled Lead and Bismuth
Carbon Steel Products From the United
Kingdom: Final Results of Changed–
Circumstances Antidumping and
Countervailing Duty Administrative
Reviews, 64 FR 66880, 66881 (November
30, 1999)). If an interested party believes
that the deposits paid do not accurately
reflect the actual amount of dumping, it
is entitled to request an administrative
review during the anniversary month of
PO 00000
Frm 00005
Fmt 4703
Sfmt 4703
the publication of the order of those
entries to determine the proper
importer–specific assessment rates (see,
e.g., Notice of Initiation and Preliminary
Results of Antidumping Duty Changed
Circumstances Review: Certain
Softwood Lumber Products from
Canada, 70 FR 37327, 37330 (June 29,
2005), results unchanged in Notice of
Final Results of Antidumping Duty
Changed Circumstances Review: Certain
Softwood Lumber Products from
Canada, 70 FR 48673 (August 19,
2005)).1
Thus, consistent with sections 781(a),
776(a), and 776(b) of the Act, we
continue to apply as AFA the inference
that all wickless petroleum wax forms
imported by, or sold to, DECOR–WARE,
Inc., A&M Wholesalers, Inc., and Albert
E. Price ultimately are completed or
assembled in the United States by the
insertion of a wick and clip assembly,
and are covered by the scope of the
Candles Order.
Affirmative Final Determination of
Circumvention
For the reasons described in the
Preliminary Determination, we continue
to find 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.
Continuation of Suspension Of
Liquidation
In accordance with section
351.225(l)(3) of the Department’s
regulations, the Department will
continue to direct U.S. Customs and
Border Protection (CBP) to suspend
liquidation for 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. CBP shall
require cash deposits in accordance
with those rates prevailing at the time
1 We note, however, that as of the date of this
final determination, the current cash deposit rate
for all PRC exporters of subject merchandise is
108.30 percent, which is the PRC-wide rate. As
such, the 108.30 percent rate will apply to all
subject merchandise imported by the three
respondents. As a result of a future administrative
review, however, the PRC-wide rate may change
and/or different separate rates may be established
for specific exporters.
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Federal Register / Vol. 72, No. 107 / Tuesday, June 5, 2007 / Notices
of entry, depending upon the exporter
in question.
This affirmative final circumvention
determination is in accordance with
section 781(a)
of the Act and 19 CFR 351.225(g).
Dated: May 30, 2007.
David M. Spooner,
Assistant Secretary for Import
Administration.
[FR Doc. E7–10781 Filed 6–4–07; 8:45 am]
BILLING CODE 3510–DS–S
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
Palmer Barge Superfund Site in
Jefferson County, TX; Settlement
Agreement and Draft Restoration Plan
and Environmental Assessment
National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice of availability of a
proposed Settlement Agreement and
Draft Restoration Plan and
Environmental Assessment for
ecological injuries and service losses
associated with the Palmer Barge
Superfund Site in Jefferson County,
Texas and of a 30-day period for public
comment on the Settlement Agreement
and the Draft Restoration Plan and
Environmental Assessment beginning
July 5, 2007.
jlentini on PROD1PC65 with NOTICES
AGENCY:
SUMMARY: Pursuant to 43 CFR 11.32 and
11.81–.82, notice is hereby given that a
proposed Settlement Agreement in
resolution of the Natural Resource
Trustees’ claim for natural resource
damages (Agreement) associated with
the Palmer Barge Superfund Site and
the ‘‘Draft Restoration Plan and
Environmental Assessment for the
Palmer Barge Waste Site, Port Arthur,
Jefferson County, Texas’’ (Draft DARP/
EA) are available for public review and
comment. This document has been
approved by the state and federal
Natural Resource Trustee agencies to
address natural resource injuries and
resource services losses of an ecological
nature attributable to releases of
hazardous substances from the Palmer
Barge Superfund Site (Site).The natural
resource trustees include: The National
Oceanic and Atmospheric
Administration (NOAA), Commerce;
United States Department of the Interior
(DOI); Texas Parks and Wildlife
Department (TPWD); Texas General
Land Office (GLO); and Texas
Commission on Environmental Quality
(TCEQ). The Natural Resource Trustees
VerDate Aug<31>2005
17:28 Jun 04, 2007
Jkt 211001
have reached a proposed agreement
with E.I. du Pont de Nemours and
Company, Texaco Inc., Ashland Inc. and
Kirby Inland Marine to resolve their
liability under the Comprehensive
Environmental Response, Compensation
and Liability Act (CERCLA) for damages
to natural resources resulting from
releases of hazardous substances from
the Site. This draft DARP/EA presents
the Trustees’ assessment of these natural
resource injuries and service losses
attributable to the Site, and the plan for
restoring ecological resources and
services to compensate for those injuries
and losses. The Trustees will consider
input received during the public
comment period before finalizing the
DARP/EA.
FOR FURTHER INFORMATION: Comments
must be submitted in writing on or
before thirty (30) days from the
publication of this notice to Richard
Seiler of the TCEQ or Jessica White of
NOAA at the addresses listed in the
previous paragraph. The Trustees will
consider all written comments prior to
finalizing the DARP/EA.
To receive a copy of the proposed
Agreement, the Draft DARP/EA, or any
other related information, interested
members of the public are invited to
contact Richard Seiler at the Texas
Commission on Environmental Quality,
Remediation Division MC 225, P.O. Box
13087, Austin, Texas 78711–3087, (512)
239–2523 (phone) or (512) 239–4814
(fax), or contact Jessica White of NOAA
at NOAA c/o US EPA, 1445 Ross
Avenue, MC 6SF\T, Dallas, TX 75202,
(214) 665–2217 (phone) or (214) 665–
6460 (fax).
SUPPLEMENTARY INFORMATION: The Site
consists of approximately 17 acres
located 4.5 miles northeast of the city of
Port Arthur in Jefferson County along
Ferry (or Old Yacht Club) Road on
Pleasure Islet, approximately one-half
mile southwest of the confluence of the
Neches River and the Sabine-Neches
Ship Channel. The Site is bordered by
the State Marine Superfund site to the
south, Sabine Lake to the east, Old
Yacht Club Road to the West, and
vacant property to the north.
The Site was originally used as a
municipal landfill for the city of Port
Arthur, which operated the landfill from
1956 until the mid-1980s. In 1982, the
city of Port Arthur sold the property and
it was subsequently used as a marine
barge cleaning operation (Palmer Barge
Marine) from 1982 until 1997.
Operations performed at the site
included cleaning, degassing,
maintenance and inspection of barges
and marine equipment. A flare was
located on-site to burn excess gasses and
PO 00000
Frm 00006
Fmt 4703
Sfmt 4703
31055
liquids produced during the facility
operations, in addition to multiple
above-ground storage tanks. In July
1997, Palmer Barge Line was purchased
and operations on the property ceased.
Currently the site is owned by a private
individual who is redeveloping it as an
industrial property.
In 1996, the TCEQ (then known as the
Texas Natural Resource Conservation
Commission, or TNRCC) conducted a
multi-media inspection of the Site
which identified large areas of
contamination on Site soils. These
findings triggered further investigation
by both the U.S. Environmental
Protection Agency (EPA) and TCEQ. In
1996, an expanded site inspection (ESI)
was performed for the purpose of
evaluating the nature and extent of onsite and off-site contamination and
evaluating the environmental fate of the
contaminants. This evaluation indicated
the presence of both organic and
inorganic contaminants in Site soils and
in the shallow near-shore sediments of
Sabine Lake. Semi-volatile
contaminants of concern identified at
the Site include acenaphthylene,
anthracene, benzo(a)pyrene, chrysene
and fluoranthene. There were also
numerous pesticides and polychlorinated bi-phenyls detected in the
Site soil samples. Elevated levels of
inorganic contaminants included
chromium, copper, lead, and zinc.
The Site was placed on the National
Priorities List (Superfund) on July 27,
2000 and the EPA authorized an
emergency removal action for reduction
of on-site contamination in August
2000. Removal activities included
removal of wastes, wastewater
treatment, and sludge stabilization. A
Remedial Investigation (RI) was
performed at the Site pursuant to an
Administrative Order on Consent signed
by the EPA and the Settling Parties in
2002, and based on information
developed in the RI, a Record of
Decision (ROD) for the Site was signed
on September 30, 2005. The ROD
requires the excavation of
approximately 1,204 cubic yards of soil
which exceeded risk-based levels,
backfilling of excavated areas with clean
soil, and off-site disposal of excavated
soils at a permitted disposal facility.
Existing above-ground storage tanks will
be demolished and removed. As
planned, and when implemented, the
remedy selected to address the
contamination at the Site is expected to
protect natural resources in the vicinity
of the Site from further or future injury.
NOAA, DOI, TPWD, GLO and TCEQ
are designated Natural Resource
Trustees under Section 107(f) of
CERCLA, Section 311 of the Federal
E:\FR\FM\05JNN1.SGM
05JNN1
]]>Agencies
[Federal Register Volume 72, Number 107 (Tuesday, June 5, 2007)]
[Notices]
[Pages 31053-31055]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-10781]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-504]
Petroleum Wax Candles from the People's Republic of China:
Affirmative Final Determination of Circumvention of the Antidumping
Duty Order
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Notice of Affirmative Final Determination of Circumvention of
the Antidumping Duty Order: Petroleum Wax Candles from the People's
Republic of China.
-----------------------------------------------------------------------
SUMMARY: On March 28, 2007, the Department of Commerce (the Department)
published its preliminary determination 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 antidumping duty order
on petroleum wax candles from the People's Republic of China (see
Antidumping Duty Order: Petroleum Wax Candles From the People's
Republic of China, 51 FR 30686 (August 28, 1986) (Candles Order)),
within the meaning of section 781(a) of the Tariff Act of 1930, as
amended (the Act). See 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, 72 FR 14518 (March 28, 2007) (Preliminary Determination). We
gave interested parties an opportunity to comment on the Preliminary
Determination, and notified the United States International Trade
Commission (ITC) because, pursuant to section 781(e) of the Act, the
ITC may request consultations concerning the Department's proposed
inclusion of the subject merchandise. The ITC notified the Department
on April 24, 2007, that consultations were not necessary. The National
Candle Association (NCA), the petitioners in this proceeding, filed the
circumvention allegation, submitted a case brief, and no parties
submitted rebuttal briefs. The Department addresses the issue raised in
the case brief, and the Department's final determination is unchanged
from its preliminary determination.
EFFECTIVE DATE: June 5, 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 March 28, 2007, the Department of Commerce (the Department)
published its preliminary determination 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
constitutes circumvention of the aforementioned order, within the
meaning of section 781(a) of the Tariff Act of 1930, as amended (the
Act). See Preliminary Determination, 72 FR 14518. On April 24, 2007,
the Department was notified by the ITC that consultations pursuant to
section 781(e)(2) of the Act were not necessary. See Memorandum to the
File from Steve Bezirganian, dated May 9, 2007. The NCA is the only
interested party that filed a case brief.
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
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 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
[[Page 31054]]
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) of the Act 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.
Analysis
We have analyzed the comment of NCA, namely, that the Department's
precedent requires the Department to use an inference that is adverse
to the interests of the three respondents that did not respond to our
requests for information because they failed to cooperate by not acting
to the best of their ability, and that the Department should apply an
adverse rate of 108.30 percent (the PRC-wide rate) for each of the
three respondent importers.
The Department agrees with NCA that adverse facts available (AFA)
is appropriate for DECOR-WARE, Inc., A&M Wholesalers, Inc., and Albert
E. Price. Pursuant to sections 776(a) and 776(b) of the Act, the
Department applied adverse facts available for those respondents in its
Preliminary Determination because these respondents did not provide
responses to the Department's requests for information, and the
Department determined that these respondents failed to cooperate to the
best of their ability. The Preliminary Determination states, in
pertinent part:
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.
See Preliminary Determination, 72 FR at 14520. The Department's adverse
inference is that all such wickless petroleum wax forms imported by, or
sold to, the three respondents ultimately are completed or assembled in
the United States by the insertion of a wick and clip assembly.
With respect to the cash deposit rate to be used for entries of
wickless petroleum wax forms imported by, or sold to, the three
respondents in question, the Department's preliminary determination
indicated that Customs and Border Protection (CBP) ``shall require cash
deposits in accordance with those rates prevailing at the time of
entry, depending upon the exporter in question.'' See Preliminary
Determination, 72 FR at 14520. As noted, the adverse inference is that
all of the wickless petroleum wax candles imported by, or sold to, the
three respondents in question are covered by the scope.
With respect to NCA's request that the Department assign an AFA
rate to the three respondents, we note that the purpose of an
anticircumvention proceeding is to determine whether the importation of
the product in question (wickless petroleum wax forms) is evading or
circumventing the Candles Order (see section 781 of the Act, and 19 CFR
351.225(a) and (g)). Other provisions of the statute, namely those in
section 751 of the Act, provide for the periodic determination of
antidumping duty rates for specific exporters/producers.
Assigning importer-specific cash deposit rates would constitute a
change to the cash deposit rates for the parties subject to an order
(i.e., exporters and producers), and the cash deposit rate of a company
subject to an order is only changed as the result of a new shipper
review or an administrative review (see Certain Hot-Rolled Lead and
Bismuth Carbon Steel Products From the United Kingdom: Final Results of
Changed-Circumstances Antidumping and Countervailing Duty
Administrative Reviews, 64 FR 66880, 66881 (November 30, 1999)). If an
interested party believes that the deposits paid do not accurately
reflect the actual amount of dumping, it is entitled to request an
administrative review during the anniversary month of the publication
of the order of those entries to determine the proper importer-specific
assessment rates (see, e.g., Notice of Initiation and Preliminary
Results of Antidumping Duty Changed Circumstances Review: Certain
Softwood Lumber Products from Canada, 70 FR 37327, 37330 (June 29,
2005), results unchanged in Notice of Final Results of Antidumping Duty
Changed Circumstances Review: Certain Softwood Lumber Products from
Canada, 70 FR 48673 (August 19, 2005)).\1\
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\1\ We note, however, that as of the date of this final
determination, the current cash deposit rate for all PRC exporters
of subject merchandise is 108.30 percent, which is the PRC-wide
rate. As such, the 108.30 percent rate will apply to all subject
merchandise imported by the three respondents. As a result of a
future administrative review, however, the PRC-wide rate may change
and/or different separate rates may be established for specific
exporters.
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Thus, consistent with sections 781(a), 776(a), and 776(b) of the
Act, we continue to apply as AFA the inference that all wickless
petroleum wax forms imported by, or sold to, DECOR-WARE, Inc., A&M
Wholesalers, Inc., and Albert E. Price ultimately are completed or
assembled in the United States by the insertion of a wick and clip
assembly, and are covered by the scope of the Candles Order.
Affirmative Final Determination of Circumvention
For the reasons described in the Preliminary Determination, we
continue to find 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.
Continuation of Suspension Of Liquidation
In accordance with section 351.225(l)(3) of the Department's
regulations, the Department will continue to direct U.S. Customs and
Border Protection (CBP) to suspend liquidation for 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. CBP shall require cash deposits in accordance with those rates
prevailing at the time
[[Page 31055]]
of entry, depending upon the exporter in question.
This affirmative final circumvention determination is in accordance
with section 781(a)
of the Act and 19 CFR 351.225(g).
Dated: May 30, 2007.
David M. Spooner,
Assistant Secretary for Import Administration.
[FR Doc. E7-10781 Filed 6-4-07; 8:45 am]
BILLING CODE 3510-DS-S
