[Federal Register Volume 75, Number 2 (Tuesday, January 5, 2010)]
[Notices]
[Pages 420-423]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-31352]


-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

U.S. Customs and Border Protection

[Docket No. USCBP-2009-0036]


Receipt of Domestic Interested Party Petition Concerning the 
Tariff Classification of Wickless Wax Objects

AGENCY: Customs and Border Protection, Department of Homeland Security.

ACTION: Notice of receipt of domestic interested party petition; 
solicitation of comments.

-----------------------------------------------------------------------

SUMMARY: Customs and Border Protection (CBP) has received a petition 
submitted on behalf of a domestic interested party requesting the 
reclassification under the Harmonized Tariff Schedule of the United 
States (HTSUS) of certain wickless wax objects from China. Currently, 
these objects are classified as ``Molded or carved articles of wax'' 
under subheading 9602.00.40, HTSUS. The petitioner contends that the 
proper classification for these wickless wax objects is in subheading 
3406.00.00, HTSUS, as candles. While the 2009 duty rates of both these 
subheadings is free, petitioner claims

[[Page 421]]

that the importers of these products are using this classification as a 
means of circumventing a dumping order that has been placed on 
petroleum wax candles from China. This document invites comments with 
regard to the correctness of the current classification.

DATES: Comments must be received on or before March 8, 2010.

ADDRESSES: You may submit comments, identified by docket number, by one 
of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments via docket number 
USCBP-2009-0036.
     Mail: Trade and Commercial Regulations Branch, Regulations 
and Rulings, Office of International Trade, Customs and Border 
Protection, 799 9th Street, NW. (Mint Annex), Washington, DC 20229-
1179.
    Instructions: All submissions received must include the agency name 
and docket number for this notice of domestic interested party petition 
concerning the tariff classification of wickless wax objects. All 
comments received will be posted without change to http://www.regulations.gov, including any personal information provided.
    Docket: For access to the docket to read background documents, 
exhibits, or comments received go to http://www.regulations.gov. 
Submitted comments may also be inspected during regular business days 
between the hours of 9 a.m. and 4:30 p.m. at the Customs and Border 
Protection, Trade and Commercial Regulations Branch, Regulations and 
Rulings, Office of International Trade, 799 9th Street, NW., 5th Floor, 
Washington, DC. Arrangements to inspect submitted comments should be 
made in advance by calling Joseph Clark, Trade and Commercial 
Regulations Branch, at (202) 325-0118. Please note that any submitted 
comments that CBP receives by mail will be posted on the above-
referenced docket for the public's convenience.

FOR FURTHER INFORMATION CONTACT: Jean-Rene Broussard, Tariff 
Classification and Marking Branch, Regulations and Rulings, Office of 
International Trade, Customs and Border Protection at (202) 325-0284.

SUPPLEMENTARY INFORMATION:

Background

    A petition has been filed under section 516 of the Tariff Act of 
1930, as amended (19 U.S.C. 1516), on behalf of the National Candle 
Association (NCA), which represents approximately 150 member companies. 
A majority of NCA's members manufacture, produce, or wholesale candles 
or candle supplies in the United States. Its members account for 
approximately 90 percent of all candles made in the United States. The 
NCA meets all of the requirements of a domestic interested party set 
forth in 19 U.S.C. 1516(a)(2) and 19 CFR 175.3. The NCA is requesting 
that Customs and Border Protection (CBP) reclassify the imported 
wickless wax objects classified in heading 9602, Harmonized Tariff 
Schedule of the United States (HTSUS), in the following rulings:
     NY L85725, dated June 30, 2005, classified a white solid 
wax cylinder with a scented fragrance that measures approximately 3'' 
in height and 3'' in diameter.
     NY L85383, dated June 15, 2005, classified four wax items 
without wicks. Item 1 is described as a yellow colored solid wax molded 
cylinder measuring approximately 3'' in height and 3'' in diameter. The 
cylinder has a \1/4\'' hole drilled through its center from top to 
bottom but does not contain a wick. Item 2 is a pink colored solid wax 
molded cylinder that measures approximately 2'' x 2'' x 6''. The 
cylinder has a \1/4\'' hole drilled through its center from top to 
bottom, but does not contain a wick. Item 3 is an orange colored solid 
wax molded triangle that measures approximately 3'' x 3'' x 3''. The 
triangle has a \1/4\'' hole drilled through its center from top to 
bottom, but does not contain a wick. Item 4 is a blue and white colored 
solid wax molded hexagon that measures approximately 1'' on each side 
and 4'' in height. The hexagon has a \1/4\'' hole drilled through its 
center from top to bottom, but does not contain a wick.
     NY L84761, dated June 2, 2005, classified a red solid wax 
cylinder with a scented fragrance that measures approximately 3'' in 
height and 3'' in diameter. The cylinder has a \1/4\'' hole drilled 
through its center from top to bottom, but does not contain a wick.
     NY G88343, dated March 26, 2001, classified three wax 
items without wicks. Item 1 is a yellow and lime colored solid wax 
cylinder that measures approximately 3'' in height and 3'' in diameter. 
The cylinder has a \1/4\'' hole drilled through its center from top to 
bottom, but does not contain a wick. Item 2 is a cylindrical white wax 
candle holder embedded with fruits, cinnamon sticks and green leaves. 
The container measures approximately 4'' in height and 4'' across its 
widest point. Item 3 is a cylindrical white wax candle holder decorated 
with a flower, a turkey and rain drop stickers. The container measures 
approximately 4'' in height and 4'' across its widest point.
     NY G87878, dated March 7, 2001, classified one wax object 
without a wick. Item CA23505B, a Basket weave-Look Wax Bowl, is a green 
colored wax bowl without a wick that measures approximately 3\1/4\'' in 
height and 8'' in diameter.
     NY G85945, dated January 16, 2001, classified one wax 
object without a wick. Item 6 is described as a wax bowl, which is a 
white colored scented wax bowl with no wick that measures approximately 
4'' in height and 10\1/2\'' in diameter and is decorated with a flower 
design.
     NY F82375, dated February 11, 2000, classified five wax 
objects without a wick. Item A is a purple colored solid paraffin wax 
cylinder that measures approximately 5\1/2\'' in height and 3'' in 
diameter. Item B is a white solid paraffin wax square pillar, 
approximately 6'' in height and 3'' wide. Item C is a brown solid 
paraffin wax block that is approximately 3'' in height and 6'' square. 
Item D is a pearl colored rounded wax piece molded in the shape of an 
oval approximately 1\1/2\'' in height and 3\1/2\'' in diameter. Item E 
is a white solid paraffin scented wax square block, approximately 3\1/
2\'' in height and 3'' wide. This item has a hole drilled directly 
through the center, but does not contain a wick. The ruling indicates 
that further processing may be performed on the objects such as 
drilling a hole when needed, adding wicks, dipping, polishing, labeling 
and packaging.
     NY F81245, dated January 11, 2000, classified a wax block 
that is scented and measures approximately 6\1/8\'' in height and 2\3/
4\'' wide. The block is blue and white colored and does not have a hole 
drilled through it.
     NY E89220, dated November 8, 1999, classified two wax 
objects. The first sample is described as a scented burgundy colored 
wax column that measures approximately 9'' in height and 3\7/8\'' in 
diameter. There is a hole in the top and bottom of the column. The 
second sample is a pink colored wax column molded in the shape of a 
baluster that measures approximately 12'' in height and 2\3/4\'' in 
diameter. The column has a hole in its top and bottom.
     NY E87727, dated September 27, 1999, classified one wax 
object without a wick. Raw Material C is a white colored solid wax 
cylinder that measures approximately 5'' in height and 5'' in diameter. 
The cylinder has a \1/4\'' hole drilled through its center from top to 
bottom.
     NY E82227, dated May 18, 1999, classified a paraffin wax 
column molded in the shape of an orange colored 3'' cube. The cube has 
a hole in the middle, but does not have a wick.

[[Page 422]]

The wax column may also be imported in various rectangular dimensions 
or in a round shape measuring either 3'' in height or 6'' in height and 
6'' in diameter.
     NY E81505, dated May 12, 1999, classified a cog wheel 
which is described as a wax disc molded in the shape of a cog wheel and 
measures approximately 1\1/2\'' in height and 1\1/2\'' in diameter. The 
disc is scented and has a hole in the middle, but does not have a wick. 
The indicated use of the object is for aroma therapy.
     NY D88246, dated March 12, 1999, classified three wax 
items. One sample is molded in the shape of a square pillar 
(approximately 3'' square and 3\1/2\'' in height). The other two items 
are molded in the shape of round columns (approximately 3'' in diameter 
and 3'' in height). All of the objects have a hole drilled directly 
through the center but do not have wicks. The importer indicated that 
further finishing would be performed in the U.S.
    In the rulings listed above, CBP applied General Rule of 
Interpretation (GRI) 1 to classify the subject merchandise in 
subheading 9602.00.40, HTSUS, which provides for ``[w]orked vegetable 
or mineral carving material and articles of these materials; molded or 
carved articles of wax, of stearin, of natural gums or natural resins, 
of modeling pastes, and other molded or carved articles, not elsewhere 
specified or included; worked, unhardened gelatin (except gelatin of 
heading 3503) and articles of unhardened gelatin: [m]olded or carved 
articles of wax * * *''. Petitioner maintains that this classification 
is incorrect because it believes that the wax objects are unfinished or 
unassembled candles and should be classified in heading 3406, HTSUS, 
which provides for ``[c]andles, tapers and the like'' by application of 
GRI 2(a). In the alternative, the petitioner argues that the wax 
objects are prima facie classifiable in headings 3406 and 9602, HTSUS, 
and that heading 3406, HTSUS, is the more specific heading by 
application of GRI 3(a). The 2009 column one general rate of duty for 
heading 3406, HTSUS, is free.
    Classification under the HTSUS is made in accordance with the GRIs. 
GRI 1 provides that the classification of goods shall be determined 
according to the terms of the headings of the tariff schedule and any 
relative section or chapter notes. In the event that the goods cannot 
be classified solely on the basis of GRI 1, and if the headings and 
legal notes do not otherwise require, the remaining GRIs 2 through 6 
may then be applied in order.
    The Harmonized Commodity Description and Coding System Explanatory 
Notes (ENs) constitute the official interpretation of the Harmonized 
System at the international level. While not legally binding on the 
contracting parties, and therefore not dispositive, the ENs provide a 
commentary on the scope of each heading of the Harmonized System and 
are thus useful in ascertaining the classification of merchandise under 
the system. CBP believes the ENs should always be consulted. See 
Treasury Decision (T.D.) 89-80, 54 FR 35127, 35128 (Aug. 23, 1989).

The Petitioner's Views

    The NCA asserts that Chinese importers are using the classification 
of wax articles in heading 9602, HTSUS, to circumvent the dumping order 
on petroleum wax candles from China. See Petroleum Wax Candles from the 
People's Republic of China: Antidumping Duty Order, 51 FR 30686 (August 
28, 1986). In particular, the NCA cites a recent circumvention order 
issued in 2007 as evidence of this attempt to avoid dumping duties. The 
order provides that wickless wax forms in the shape of tapers, spirals, 
rounds, columns, votives pillars, as well as wax-filled containers 
being imported by or sold to D[Eacute]COR-WARE, Inc., A&M Wholesalers, 
Inc., or Albert E. Price are circumventing the dumping order on 
petroleum wax candles from China. See Notice of Partial Termination and 
Affirmative Preliminary Determination of Circumvention of the 
Antidumping Duty Order: Petroleum Wax Candles from the People's 
Republic of China, 72 FR 14518 (March 28, 2007) and Petroleum Wax 
Candles from the People's Republic of China: Affirmative Final 
Determination of Circumvention of the Antidumping Duty Order, 72 FR 
31053 (June 5, 2007). As in the circumvention inquiry noted above, NCA 
points to sample candles with wicks that were allegedly inserted after 
importation into the U.S. claiming that the wicks of these candles are 
easily removed which indicates that the wicks were inserted into 
drilled holes in the wax after importation into the United States. 
Hence, the NCA believes that the wickless wax forms should be 
classified as unfinished candles in heading 3406, HTSUS, so as to make 
circumvention of anti-dumping duties difficult.
    In support of NCA's classification argument it refers to the EN for 
heading 9602, HTSUS, which states ``moulded articles means articles 
which have been moulded to a shape appropriate to their intended use. 
On the other hand, materials moulded in the shape of blocks, cubes, 
plates, bars, sticks, etc., whether or not impressed during moulding, 
are not included.'' The NCA asserts that the exclusionary language of 
this note prevents the classification of these objects in heading 9602, 
HTSUS, by application of GRI 1, thus requiring the application of GRIs 
2 or 3.
    NCA asserts that the wax objects should be classified in heading 
3406, HTSUS, by application of either GRI 2(a) or 3(a). NCA argues that 
the wax objects are unfinished candles, or blanks, that have the 
essential character of a candle. It contends that the wax objects 
provide the finished candle with the shape, color, and size of the 
finished product and that most consumers identify candles based on 
these characteristics. In the alternative it argues that the wax 
objects are unassembled candles by application of GRI 2(a). A third 
alternative argument offered by NCA is that the wax objects are prima 
facie classifiable in both heading 3406, HTSUS, and heading 9602, 
HTSUS, and that heading 3406, HTSUS, is more specific than heading 
9602, requiring classification in heading 3406, HTSUS, by application 
of GRI 3(a).

Analysis Used by CBP in Prior Rulings

    In the rulings that are the subject of this petition, CBP held that 
classification in heading 3406, HTSUS, at the GRI 1 level is not 
possible because these objects do not meet the common definition of a 
candle.
    Historically CBP has classified these wax objects in subheading 
9602.00.40, HTSUS, as molded or carved articles of wax by application 
of GRI 1 because it concluded that the terms of heading 9602, HTSUS, 
completely describe the subject goods. CBP has interpreted the language 
of the EN to heading 9602, HTSUS, to mean that a molded article of wax 
is any object that has been shaped or cut from its primary or bulk 
form. The exclusionary language of this EN describes wax that is in its 
primary or bulk form. All of the articles are molded into smaller 
shapes from their primary or bulk forms and many of the objects have 
been carved by the act of drilling holes into the wax. CBP's position 
has been that these objects are not classifiable as wax in its primary 
form and thus are completely described as molded articles of wax in 
heading 9602, HTSUS, by application of GRI 1.
    Moreover, in its prior rulings, CBP held that the wax objects are 
not classifiable as unfinished candles in heading 3406, HTSUS, by 
application of GRI 2(a) because the wax objects are classifiable by 
application of GRI 1. CBP reasoned that a candle functions as a

[[Page 423]]

source of illumination that is composed of a wick surrounded by wax. 
CBP concluded that the wax objects, on their own, were unable to 
provide illumination. CBP's historical position is that the essential 
character of a candle is imparted by both the wick and the wax 
components. None of the wax objects have a wick and are unable to 
provide its user with light. Therefore, CBP held that the wax objects 
do not have the essential character of a candle.
    In addition, CBP also held that the wax forms are not unassembled 
candles because unassembled goods must be imported with the requisite 
number of parts. None of the rulings indicate that the wax objects were 
being imported with an equal number of wicks. Therefore, CBP has 
concluded that classification by application of GRI 2(a) in heading 
3406, HTSUS is inappropriate.
    Finally, CBP's prior decisions held that classification by 
application of GRI 3(a) is inappropriate because the wax objects are 
not prima facie classifiable in two or more headings of the HTSUS. In 
order for classification by application of GRI 3(a) to be appropriate 
the goods cannot be classifiable by application of GRIs 1 or 2 and the 
good must be prima facie classifiable in two or more headings. As 
indicated above, CBP has held that heading 3406, HTSUS, does not 
describe the imported products. As a result, the wax articles are not 
prima facie classifiable in any other heading, except heading 9602, 
HTSUS.

Comments

    Pursuant to section 175.21(a), CBP regulations (19 CFR 175.21(a)), 
before making a determination on this matter, CBP invites written 
comments on the petition from interested parties.
    The domestic interested party petition concerning the tariff 
classification of wax objects, as well as all comments received in 
response to this notice, will be available for public inspection on the 
docket at http://www.regulations.gov. Please note that any submitted 
comments that CBP receives by mail will be posted on the above-
referenced docket for the public's convenience.

    Authority: This notice is published in accordance with section 
175.21(a), CBP Regulations (19 CFR 175.21(a)) and 19 U.S.C. 1516.

    Dated: December 29, 2009.
Jayson P. Ahern,
Acting Commissioner, U.S. Customs and Border Protection.
[FR Doc. E9-31352 Filed 1-4-10; 8:45 am]
BILLING CODE 9111-14-P