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[Federal Register Volume 74, Number 161 (Friday, August 21, 2009)]
[Notices]
[Pages 42230-42232]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-20139]

[[Page 42230]]

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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-504]

Petroleum Wax Candles from the People's Republic of China: 
Request for Comments on the Scope of the Antidumping Duty Order and the 
Impact on Scope Determinations

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.
SUMMARY:  The Department of Commerce (``Department'') has considered 
certain novelty candles (i.e., candles in the shape of an identifiable 
object or with holiday-specific design both being discernable from 
multiple angles) outside the scope of the Order. See Antidumping Duty 
Order: Petroleum Wax Candles from the People's Republic of China, 51 
Fed. Reg. 30686 (August 28, 1986) (``Order''). These exclusions were 
made in accordance with 19 C.F.R. Sec.  351.225(k)(1) and past 
Department practices. However, given the extremely large number of 
scope determinations requested by outside parties, the Department now 
seeks comments from the interested parties on the best method to 
consider whether novelty candles should or should not be included 
within the scope of the Order given the extremely large number of scope 
determinations requested by outside parties.

DATES: Comments must be submitted no later than September 16, 2009.

ADDRESSES: Written comments (original and six copies) should be sent to 
the Secretary of Commerce; Attn: Alex Villanueva, Import 
Administration, APO/Dockets Unit, Room 1870, U.S. Department of 
Commerce, 14th Street & Constitution Ave., NW, Washington, DC 20230.

FOR FURTHER INFORMATION CONTACT: Alex Villanueva, Program Manager, AD/
CVD Operations, Office 9, Import Administration, U.S. Department of 
Commerce, 14th Street & Constitution Ave., NW, Washington, DC 20230, 
telephone: (202) 482-3208.

SUPPLEMENTARY INFORMATION:

Background

    The regulations governing the Department's scope determinations are 
found at 19 C.F.R. Sec.  351.225. On matters concerning the scope of an 
antidumping duty order, the Department first examines the descriptions 
of the merchandise contained in the petition, the initial 
investigation, and the determinations of the Secretary (including prior 
scope determinations) and the U.S. International Trade Commission 
(``ITC''). A determination may take place with or without a formal 
inquiry. If the Department determines that these descriptions are 
dispositive of the matter, the Department will issue a final scope 
ruling as to whether or not the subject merchandise is covered by the 
order. See 19 C.F.R. Sec.  351.225(k)(1).
    Conversely, where the descriptions of the merchandise are not 
dispositive, the Department will consider the five additional factors 
set forth at 19 C.F.R. Sec.  351.225(k)(2). These criteria are: (1) the 
physical characteristics of the merchandise; (2) the expectations of 
the ultimate purchasers; (3) the ultimate use of the product; (4) the 
channels of trade in which the product is sold; and (5) the manner in 
which the product is advertised and displayed. The determination as to 
which analytical framework is most appropriate in any given scope 
inquiry is made on a case-by-case basis after consideration of all 
evidence before the Department.
    In past scope determinations under the Order, the Department has 
relied on the scope of the Petition, prior scope determinations and 
documents from the ITC as guidance. We have noted that in its 
Antidumping Petition on Behalf of the National Candle Association 
(``NCA''), dated September 4, 1985 (``Antidumping Petition''), the NCA 
requested that the investigation cover:
    {c{time} andles {which{time}  are made from petroleum wax and 
contain fiber or paper-cored wicks. They are sold in the following 
shapes: tapers, spirals, and straight-sided dinner candles; rounds, 
columns, pillars; votives; and various wax-filled containers. These 
candles may be scented or unscented ... and are generally used by 
retail consumers in the home or yard for decorative or lighting 
purposes.
See Antidumping Petition at 7.
    The Department adopted this scope language in its notice of 
initiation. This scope language carried forward without change through 
the preliminary and final determinations of sales at less than fair 
value and the eventual antidumping duty order:
    {c{time} ertain scented or unscented petroleum wax candles made 
from petroleum wax and having fiber or paper-cored wicks. They are sold 
in the following shapes: tapers, spirals, and straight-sided dinner 
candles; rounds, columns, pillars, votives; and various wax-filled 
containers.
See Petroleum Wax Candles from the People's Republic of China: 
Initiation of Antidumping Duty Investigation, 50 Fed. Reg. 39743 
(September 30, 1985); Petroleum Wax Candles from the People's Republic 
of China: Preliminary Determination of Sales at Less Than Fair Value, 
51 Fed. Reg. 6016 (February 19, 1986); Petroleum Wax Candles from the 
People's Republic of China: Final Determination of Sales at Less Than 
Fair Value, 51 Fed. Reg. 25085 (July 10, 1986); and Order. However, 
while the ITC adopted a similar definition of the ``domestic like 
product'' subject to its determinations, it noted that the 
investigations did not include ``birthday, birthday numeral and 
figurine type candles.'' See Candles from the People's Republic of 
China: Determination of the Commission in Investigation No. 731-TA-282 
(Final), Publication 1888 (August 1986) at 4, note 5, and A-2.
    The ITC's statement regarding birthday, birthday numeral and 
figurine type candles was echoed in the Department's instructions to 
the U.S. Customs Service\1\ issued in connection with a July 1987 scope 
determination concerning an exception from the Order for novelty 
candles (CBP Notice), which states:
---------------------------------------------------------------------------

    On July 28, 2006, the United States Customs Service since was 
renamed as the United States Bureau of Customs and Border 
Protection. See Homeland Security Act of 2002, Pub. L. 107-296, 
Sec.  1502, 116 Stat. 2135, 2308-09 (2002); Reorganization Plan 
Modification for the Department of Homeland Security, H.R. Doc. No. 
108-32, at 4 (2003).
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    The Department of Commerce has determined that certain novelty 
candles, such as Christmas novelty candles, are not within the scope of 
the antidumping duty order on petroleum-wax candles from the People's 
Republic of China (PRC). Christmas novelty candles are candles 
specially designed for use only in connection with the Christmas 
holiday season. This use is clearly indicated by Christmas scenes and 
symbols depicted in the candle design. Other novelty candles not within 
the scope of the order include candles having scenes or symbols of 
other occasions (e.g., religious holidays or special events) depicted 
in their designs, figurine candles, and candles shaped in the form of 
identifiable objects (e.g., animals or numerals).
See CBP Notice.
    In November 2001, the Department changed its practice on the issue 
of candle shapes. See Final Scope Ruling Antidumping Duty Order on 
Petroleum Wax Candles From the People's Republic of China (A-570-504); 
JC Penney Purchasing Corporation, (November 9, 2001) (``JC Penney''). 
In this ruling, the Department reviewed the

[[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: http://www.ia.ita.doc.gov. Any questions concerning file formatting, document 
conversion, access on the Internet, or other electronic filing issues 
should be addressed to Andrew Lee Beller, Import Administration 
Webmaster, at (202) 482

[[Page 42232]]

0866, e-mail address: [email protected].

    Dated: August 14, 2009.
John M. Andersen,
Acting Deputy Assistant Secretary for Antidumping and Countervailing 
Duty Operations.
[FR Doc. E9-20139 Filed 8-20-09; 8:45 am]
BILLING CODE 3510-DS-S
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