[Federal Register Volume 72, Number 107 (Tuesday, June 5, 2007)]
[Notices]
[Pages 31053-31055]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-10781]


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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.

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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