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, 42230-42232 [E9-20139]
Download as PDF
<![CDATA[
42230
Federal Register / Vol. 74, No. 161 / Friday, August 21, 2009 / Notices
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.
§ 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:
srobinson on DSKHWCL6B1PROD with NOTICES
Background
The regulations governing the
Department’s scope determinations are
found at 19 C.F.R. § 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)
VerDate Nov<24>2008
16:22 Aug 20, 2009
Jkt 217001
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. § 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.
§ 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}andles {which} 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}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);
PO 00000
Frm 00006
Fmt 4703
Sfmt 4703
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 Service1 issued in connection
with a July 1987 scope determination
concerning an exception from the Order
for novelty candles (CBP Notice), which
states:
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
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, §
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).
E:\FR\FM\21AUN1.SGM
21AUN1
Federal Register / Vol. 74, No. 161 / Friday, August 21, 2009 / Notices
srobinson on DSKHWCL6B1PROD with NOTICES
text of the scope of the Order, beginning
with the text of the first sentence of the
scope which covers ‘‘{c}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}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
VerDate Nov<24>2008
16:22 Aug 20, 2009
Jkt 217001
42231
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.
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.
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.
§ 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:
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.
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
PO 00000
Frm 00007
Fmt 4703
Sfmt 4703
Pending Scope Determinations
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: https://
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
E:\FR\FM\21AUN1.SGM
21AUN1
42232
Federal Register / Vol. 74, No. 161 / Friday, August 21, 2009 / Notices
0866, e–mail address:
webmastersupport@ita.doc.gov.
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
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
RIN 0648–XQ40
Magnuson-Stevens Act Provisions;
General Provisions for Domestic
Fisheries; Application for Exempted
Fishing Permits
srobinson on DSKHWCL6B1PROD with NOTICES
AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice; request for comments.
SUMMARY: The Assistant Regional
Administrator for Sustainable Fisheries,
Northeast Region, NMFS, has made a
preliminary determination that the
subject exempted fishing permit (EFP)
application contains all the required
information and warrants further
consideration. Therefore, NMFS
announces that the Assistant Regional
Administrator proposes to recommend
that an EFP be issued that would allow
commercial fishing vessels to conduct
fishing operations that are otherwise
restricted by the regulations governing
the fisheries of the Northeastern United
States. Regulations under the
Magnuson-Stevens Fishery
Conservation and Management Act
require publication of this notification
to provide interested parties the
opportunity to comment on applications
for proposed EFPs.
DATES: Comments must be received on
or before September 8, 2009.
ADDRESSES: Comments may be
submitted by email to
NERO.EFP@noaa.gov. Written
comments should be sent to Patricia A.
Kurkul, Regional Administrator, NMFS,
Northeast Regional Office, 55 Great
Republic Drive, Gloucester, MA 01930.
Mark the outside of the envelope
‘‘Comments on the SNE Flatfish Discard
Mortality EFP.’’ Comments may also be
sent via facsimile (fax) to (978) 281–
9135.
FOR FURTHER INFORMATION CONTACT:
Melissa Vasquez, Fishery Management
Specialist, (978) 281–9166, fax (978)
281–9135.
VerDate Nov<24>2008
16:22 Aug 20, 2009
Jkt 217001
An EFP is
being requested for eight vessels
participating in the Southern New
England (SNE) Flatfish Discard
Mortality Study conducted by the
NOAA/University of Massachusetts
Dartmouth School for Marine Science
and Technology (SMAST) Cooperative
Marine Education and Research
program. The primary objective of this
study is to assess the effects of different
stressors on the mortality of flatfish
discarded in the SNE and Mid-Atlantic
trawl fisheries. The researchers would
conduct field and lab observations of
flatfish captured during regular
commercial fishing operations for Reflex
Action Mortality Predictors (RAMP)
under different stressors to assess the
discard mortality rates of five flatfish
species: SNE yellowtail flounder; SNE
winter flounder; summer flounder;
northern windowpane flounder; and
southern windowpane flounder. In
addition, the applicants would use the
results of their study to assess the use
of RAMP in estimating the mortality of
each species within the flatfish
complex.
The study would be conducted aboard
eight commercial fishing vessels in the
SNE and Mid-Atlantic mixed trawl
fishery beginning the date of issuance of
the EFP and continuing for a full year.
All vessels would utilize otter trawl gear
with gear configuration and mesh size
dictated by current fishery regulations.
NOAA/University of Massachusetts
technicians and/or commercial
fishermen would collect 100 fish of each
species per month, during regular
commercial fishing operations, for a
maximum catch of 6,000 fish over the
course of the 12-month study (Table 1).
Fish would be landed and transported
live to the SMAST seawater lab facility
for testing and would not be sold. The
applicants have requested an exemption
from NE multispecies possession
restrictions for SNE yellowtail flounder,
SNE winter flounder, and northern
windowpane flounder, specified at
§§ 648.86(g)(1), 648.86(n)(1), and
648.86(n)(2), respectively, in order to
land the live specimens in excess of
possession limits. The applicants have
also requested an exemption from NE
multispecies minimum fish sizes
specified at § 648.83 and the summer
flounder minimum fish size at
§ 648.103(a) in order to test a
representative sample of the age
composition of discarded flatfish.
SUPPLEMENTARY INFORMATION:
PO 00000
TABLE 1: ESTIMATED SAMPLE SIZE
Species
#fish/month
#fish total
SNE
Yellowtail
Flounder
100
1200
SNE Winter
Flounder
100
1200
Summer
Flounder
100
1200
Northern
Windowpane Flounder
100
1200
Southern
Windowpane Flounder
100
1200
For the field-based portion of the
study, technicians would observe a
minimum of 100 fish of each species on
commercial fishing trips for RAMP
before they are discarded at-sea. The
applicants would require a temporary
exemption from the summer flounder
commercial minimum fish size
restriction at § 648.103(a), the NE
multispecies minimum fish size
restrictions at § 648.83, and the NE
multispecies possession restrictions at
§§ 648.86(g)(1), 648.86(n)(1), and
648.86(n)(2), for the time period when
trained technicians or crew are
sampling fish. To ensure that monthly
sampling is not disrupted, the
applicants have also requested vessels
be exempt from the summer flounder
closure specified at § 648.101(a) for the
purposes of collecting the 100 live
specimens of each species each month.
The applicants may request minor
modifications and extensions to the EFP
throughout the course of research. EFP
modifications and extensions may be
granted without further public notice if
they are deemed essential to facilitate
completion of the proposed research
and result in only a minimal change in
the scope or impacts of the initially
approved EFP request.
In accordance with NAO
Administrative Order 216–6, a
Categorical Exclusion or other
appropriate National Environmental
Policy Act document would be
completed prior to the issuance of the
EFP. Further review and consultation
may be necessary before a final
determination is made to issue the EFP.
After publication of this document in
the Federal Register, the EFP, if
approved, may become effective
following the public comment period.
Authority: 16 U.S.C. 1801 et seq.
Frm 00008
Fmt 4703
Sfmt 4703
E:\FR\FM\21AUN1.SGM
21AUN1
]]>Agencies
[Federal Register Volume 74, Number 161 (Friday, August 21, 2009)]
[Notices]
[Pages 42230-42232]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-20139]
[[Page 42230]]
-----------------------------------------------------------------------
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:
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------
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
[[Page 42231]]
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: https://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
[[Page 42232]]
0866, e-mail address: webmastersupport@ita.doc.gov.
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
