42230 Federal Register / Vol. 74, No. 161 / Friday, August 21, 2009 / Notices 

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). 

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: 

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) 

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); 

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 


srobinson on DSKHWCL6B1PROD with NOTICES
Federal Register / Vol. 74, No. 161 / Friday, August 21, 2009 / Notices 42231 

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 

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. 

§ 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 


srobinson on DSKHWCL6B1PROD with NOTICES
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 

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. 

SUPPLEMENTARY INFORMATION: 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. 

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. 


srobinson on DSKHWCL6B1PROD with NOTICES