70 FR 10962, March 7, 2005

DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-504]

Petroleum Wax Candles From the People's Republic of China: 
Initiation of Anticircumvention Inquiries of Antidumping Duty Order

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

ACTION: Notice of Initiation of Anticircumvention Inquiries of 
Antidumping Duty Order: Petroleum Wax Candles from the People's 
Republic of China.

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SUMMARY: In response to a request from the National Candle Association 
(``NCA'' or ``Petitioners''), the Department of Commerce (``the 
Department'') is initiating an anticircumvention inquiry pursuant to 
section 781(c) of the Tariff Act of 1930, as amended, (``the Act'') to 
determine whether mixed wax candles composed of petroleum wax and 
varying amounts of either palm or vegetable-based waxes have been 
subject to a minor alteration such that the addition of the non-
petroleum content to these candles results in products that are 
``altered in form or appearance in minor respects'' from the subject 
merchandise that these mixed wax petroleum candles can be considered 
subject to the antidumping duty order on petroleum wax candles from the 
People's Republic of China (``PRC'') under the minor alterations 
provision. See Notice of Antidumping Duty Order: Petroleum Wax Candles 
from the People's Republic of China, 51 FR 30686 (August 28, 1986) 
(``Order'').

[[Page 10963]]

    In addition, in response to a request from the NCA, the Department 
is also initiating an anticircumvention inquiry pursuant to section 
781(d) of the Act to determine whether mixed wax candles composed of 
petroleum wax and varying amounts of either palm or vegetable-based 
waxes are later-developed products that can be considered subject to 
the antidumping duty order on petroleum wax candles from the PRC under 
the later-developed merchandise provision.

EFFECTIVE DATE: March 7, 2005.

FOR FURTHER INFORMATION CONTACT: Alex Villanueva, Julia Hancock, or 
Nicole Bankhead, AD/CVD Operations, Office 9, Import Administration, 
International Trade Administration, U.S. Department of Commerce, 14th 
Street and Constitution Avenue, NW., Washington, DC, 20230; telephone: 
(202) 482-3208, (202) 482-1394, and (202) 482-9068, respectively.

SUPPLEMENTARY INFORMATION:

Background

    On October 8, 2004, Petitioners requested that the Department 
conduct an anticircumvention inquiry pursuant to section 781(d) of the 
Act to determine whether candles containing palm or vegetable-based 
waxes as the majority ingredient and exported to the United States are 
circumventing the antidumping duty order on petroleum wax candles from 
the PRC.
    On October 12, 2004, Petitioners requested that the Department 
conduct an anticircumvention inquiry pursuant to section 781(c) of the 
Act to determine whether candles containing palm or vegetable-based 
waxes and exported to the United States are circumventing the 
antidumping duty order on petroleum wax candles from the PRC.
    On November 15, 2004, the Candle Corporation of America (``CCA''), 
a domestic producer, submitted comments in opposition to Petitioners' 
request that the Department initiate this anticircumvention inquiry. On 
November 15, 2004, the Department extended the deadline by three weeks 
for initiating the later-developed merchandise anticircumvention 
inquiry from November 22, 2004, to December 13, 2004. In addition, on 
November 15, 2004, the Department extended by three weeks the deadline 
for initiating the minor alterations anticircumvention inquiry, from 
November 26, 2004, to December 17, 2004.
    On November 16, 2004, Russ Berrie & Company, Inc. (``Russ 
Berrie''), a domestic importer, submitted comments in opposition to 
Petitioners' request that the Department initiate an anticircumvention 
inquiry.
    On December 2, 2004, J.C. Penney Company, Inc., Target Corporation, 
the National Retail Federation, the MVP Group, the Candle Company, and 
the World at Large, hereinafter collectively known as the Coalition for 
Free Trade in Candles (``CFTC''), which represents these domestic 
importers, submitted comments in opposition to Petitioners' request 
that the Department initiate an anticircumvention inquiry.
    On December 6, 2004, Fine Arts Marketing, Inc.; HomeScents, Inc.; 
Lava Enterprises Inc.; Makebest Industries, Ltd.; Silk Road Gifts, 
Inc.; Tag Trade Associates Group, Ltd. and Zodax, Inc., hereinafter 
collectively referred to as the ``Tuttle Importers,'' submitted 
comments in these domestic importers' opposition to Petitioners' 
request that the Department initiate an anticircumvention inquiry.
    On December 9, 2004, Petitioners submitted rebuttal comments to the 
Department in response to comments made by those parties opposing 
Petitioners' request for the initiation of an anticircumvention 
inquiry.
    On December 10, 2004, Pier 1 Imports (U.S.), Inc. (``Pier 1''), a 
domestic importer, submitted comments in opposition to Petitioners' 
request that the Department initiate an anticircumvention inquiry.
    On December 13, 2004, the Department extended the later-developed 
merchandise anticircumvention initiation deadline because additional 
information was needed for the Department to make a decision within the 
established time limits to initiate an anticircumvention inquiry. The 
deadline for initiating the later-developed merchandise 
anticircumvention inquiry was extended by sixty days from December 13, 
2004, to February 11, 2005. Also on December 13, 2004, the Department 
issued a supplemental questionnaire to Petitioners regarding several 
areas in the later-developed merchandise anticircumvention request that 
needed further clarification.
    In addition, on December 13, 2004, the Department extended the 
minor alterations anticircumvention initiation deadline a second time 
because additional information was needed Department to make a decision 
within the established time limits to initiate an anticircumvention 
inquiry. The deadline for initiating the minor alterations 
anticircumvention inquiry was extended by sixty days from December 17, 
2004, to February 15, 2005. Also, on December 13, 2004, the Department 
issued a supplemental questionnaire to Petitioners addressing several 
areas in the minor alterations anticircumvention request that needed 
further clarification.
    On December 17, 2004, Petitioners requested an extension of three 
weeks to respond to the Department's supplemental questionnaires. On 
December 20, 2004, the Department granted Petitioners an extension of 
fifteen days from December 27, 2004, to January 14, 2005, to respond to 
the Department's supplemental questionnaires. On January 14, 2005, 
Petitioners submitted a response to the supplemental questionnaires 
issued by the Department.
    On January 24, 2005, the CFTC requested that the Department extend 
the deadline for initiating the anticircumvention inquiry by one month 
from February 11, 2005, to March 11, 2005.
    On January 25, 2005, Petitioners submitted samples of candles, 
which were referenced in the supplemental questionnaire response filed 
on January 14, 2005.
    On January 27, 2005, Petitioners submitted comments in opposition 
to the CFTC's request to extend the deadline for initiating the 
anticircumvention inquiry.
    On January 28, 2005, CCA submitted comments in response to 
Petitioners' supplemental questionnaire response.
    On January 31, 2005, the Department extended the later-developed 
merchandise anticircumvention initiation deadline a third time because 
domestic interested parties needed additional time to respond to 
Petitioners' supplemental response. The deadline for initiating the 
later-developed merchandise anticircumvention inquiry was extended by 
ten days from February 11, 2005, to February 22, 2005. Also, on January 
31, 2005, the Department extended the anticircumvention initiation 
deadline for the minor alterations anticircumvention inquiry by ten 
days from February 15, 2005, to February 25, 2005. In addition, on 
January 31, 2005, the Department granted CFTC and other interested 
parties an extension of ten days from January 28, 2005, to February 7, 
2005, to submit factual information rebutting, clarifying, or 
corroborating factual information submitted by Petitioners to 
respondents on January 18, 2005.
    Also on January 31, 2005, Russ Berrie requested that the Department 
extend the deadline for initiation. In its submission, Russ Berrie 
noted that it had submitted interim comments rebutting Petitioners' 
supplemental response in case in which the

[[Page 10964]]

Department did not extend the deadline as previously requested by the 
CFTC.
    On February 2, 2005, CFTC submitted comments in response to 
Petitioners' supplemental questionnaire responses.
    On February 7, 2005, Petitioners submitted rebuttal comments in 
response to comments made by interested parties regarding Petitioners' 
supplemental response. On February 7, 2005, Silk Road Gifts, Ltd. 
(``Silk Road''), a domestic importer, submitted comments in response to 
Petitioners' supplemental response. Also on February 7, 2005, CFTC 
submitted additional comments and samples of candles.
    On February 11, 2005, the Department placed a memorandum on the 
file regarding the ex parte meeting the Department had with counsel for 
Petitioners on February 10, 2005.
    On February 16, 2005, the Department placed a memorandum on the 
file regarding the ex parte meeting Acting Assistant Secretary Joseph 
Spetrini had with members of the Coalition for Free Trade in Candles on 
February 15, 2005.
    On February 18, 2005, the Department extended the initiation 
deadline of the anticircumvention inquiry by three days from February 
22, 2005, to February 25, 2005. Additionally, on February 18, 2005, 
Qindao Kingking Applied Chemistry Co., Ltd.; Shonfeld's (USA), Inc.; 
Alef Judaica, Inc.; and Amscan, Inc. submitted comments in response to 
Petitioners' supplemental questionnaire response.
    On February 24, 2005, a memorandum to the file was placed by the 
Department regarding the ex parte meeting that the Acting Assistant 
Secretary Joseph Spetrini had with counsel for Petitioners on February 
23, 2005. Additionally, on February 24, 2005, Petitioners filed further 
rebuttal comments.

Scope of 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; round, columns, pillars, 
votives; and various wax-filled containers. The products were 
classified under the Tariff Schedules of the United States (``TSUS'') 
755.25, Candles and Tapers. The product covered are currently 
classified under the Harmonized Tariff Schedule of the United States 
(``HTSUS'') item 3406.00.00. Although the HTSUS subheading is provided 
for convenience purposes, our written description remains dispositive. 
See Order; see also Notice of Final Results of the Antidumping Duty New 
Shipper Review: Petroleum Wax Candles from the People's Republic of 
China, 69 FR 77990 (December 29, 2004).

Initiation of Minor Alterations Anticircumvention Proceeding

    Section 781(c)(1) of the Act provides that the Department may find 
circumvention of an antidumping duty order when products which are of 
the class or kind of merchandise subject to an antidumping duty order 
have been ``altered in form or appearance in minor respects * * * 
whether or not included in the same tariff classification.''
    Based on the language contained in the petition, the antidumping 
duty order, and the fact that the domestic ``like product'' 
determinations of the ITC are not dispositive, the Department finds 
that there is sufficient basis to initiate an anticircumvention inquiry 
pursuant to section 781(c) of the Act to determine whether the addition 
of vegetable and/or palm-based wax results in a minor alteration, and 
thus, a change so insignificant as to render the petroleum based, mixed 
candle subject to the antidumping duty order on petroleum wax candles 
from the PRC.\1\
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    \1\ The various comments submitted by interested parties will be 
considered by the Department in its final determination.
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Scope of the Minor Alterations Anticircumvention Proceeding

    Petitioners argue that it is almost impossible to specify in this 
application all or most all PRC producers and importers of mixed wax 
petroleum wax candles containing varying amounts of palm or other 
vegetable-based waxes because of the continuously increasing quantity 
of imports of these candles into the United States. Additionally, 
Petitioners argue that an application requesting an anticircumvention 
inquiry and a resulting determination finding circumvention limited to 
only a few companies and specific candles would have little to no 
effect in preventing circumvention of the order.
    The Department recognizes that Petitioners have limited information 
available to them at this time regarding the production, exportation 
and importation of mixed wax petroleum wax candles containing varying 
amounts of palm or other vegetable-based waxes. Specifically, we agree 
that obtaining subject and non-subject import data from the only tariff 
classification for all candles and the unknown number of companies 
producing and exporting to the United States mixed wax petroleum wax 
candles containing varying amounts of palm and/or vegetable-based waxes 
is difficult. However, we also note that Petitioners have provided a 
list of companies importing and, to a certain extent, identified those 
companies producing/exporting mixed wax petroleum wax candles varying 
amounts of palm and/or vegetable-based waxes based on that companies' 
scope ruling request submitted to the Department. See Petitioners' 
Minor Alterations Supplemental Response (January 14, 2005) at Appendix 
I. In addition, Petitioners have provided, where available, specific 
model/product/SKU numbers for consideration in this anticircumvention 
inquiry using the data from the companies' scope ruling requests 
previously submitted to the Department. See Petitioners' Minor 
Alterations Submission (October 12, 2004) at Appendix 1.
    We are initiating this anticircumvention inquiry on particular PRC 
exporters, as identified by Petitioners in Appendix 1 of their January 
14, 2005, submission. However, within 45 days of the date of initiation 
of this inquiry, if the Department receives sufficient evidence that 
other PRC manufacturers are involved in the production of mixed wax 
petroleum wax candles containing varying amounts of palm and/or 
vegetable-based waxes for export to the United States, we will consider 
examining such additional manufacturers.
    The Department will not order the suspension of liquidation of 
entries of any additional merchandise at this time. However, in 
accordance with 19 CFR 351.225(l)(2), if the Department issues a 
preliminary affirmative determination, we will then instruct U.S. 
Customs and Border Protection (``CBP'') to suspend liquidation and 
require a cash deposit of estimated duties on the merchandise.

Initiation of Later-Developed Merchandise Anticircumvention Proceeding

    Section 781(d)(1)(A) of the Act provides that the Department may 
find circumvention of an antidumping duty order when merchandise is 
developed after an investigation is initiated (``later-developed 
merchandise'').
    Based on the language contained in the petition and the antidumping 
duty order, and the fact that the domestic like product determinations 
of the International Trade Commission (``ITC'') is not dispositive, the 
Department finds that there is sufficient basis to initiate an 
anticircumvention inquiry pursuant to section 781(d) of the Act to 
determine whether candles produced through the

[[Page 10965]]

addition of vegetable and/or palm-based wax to petroleum wax are later-
developed products that can be considered subject to the antidumping 
duty order on petroleum wax candles from the PRC under the later-
developed merchandise provision.\2\
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    \2\ The Department recognizes that certain parties submitted 
comments addressing certain factors as required by section 781(d) of 
the Act, however the Department will address these comments in the 
final determination.
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    The Department recognizes that the ITC's final injury determination 
states that ``commercial production of candles generally uses 
``natural'' waxes (paraffins, microcrystallines, stearic acid, and 
beeswax) in various combinations.'' See Candles from the People's 
Republic of China, Investigation No. 731-TA-282 (Final), USITC 
Publication 1888 (August 1986) at 2 (``ITC Final Determination''). In 
addition, we note that the ITC Final Determination defined petroleum 
wax candles ``as those composed of over 50 percent petroleum wax,'' and 
noted that such candles ``may contain other waxes in varying amounts, 
depending on the size and shape of the candle, to enhance the melt-
point, viscosity, and burning power.'' Id. However, because the 
Department did not address the proportion of these waxes that would be 
indicative of petroleum wax candles, there is no clear basis for the 
Department to make a conclusive determination that candles with non-
petroleum waxes in a different proportion are not later-developed 
merchandise. Consequently, we are initiating this inquiry under section 
781(d) of the Act.
    In addition, parties may submit comments regarding the 
appropriateness of our later-developed analysis as provided in this 
notice, no later than thirty days from the date of publication of this 
notice. Rebuttal comments are due no later than forty days from the 
date of publication of this notice.
    The Department will not order the suspension of liquidation of 
entries of any additional merchandise at this time. However, in 
accordance with 19 CFR 351.225(l)(2), if the Department issues a 
preliminary affirmative determination, we will then instruct CBP to 
suspend liquidation and require a cash deposit of estimated duties on 
the merchandise.
    We intend to notify the ITC in the event of an affirmative 
preliminary determination of circumvention, in accordance with 
781(e)(1) of the Act and 19 CFR 351.225(f)(7)(i)(C).The Department 
will, following consultation with interested parties, establish a 
schedule for questionnaires and comments on the issues. The Department 
intends to issue its final determinations within 300 days of the date 
of publication of this initiation. This notice is published in 
accordance with sections 781(c) and 781(d) of the Act and 19 CFR 
351.225(i).

    Dated: February 25, 2005.
Joseph A. Spetrini,
Acting Assistant Secretary for Import Administration.
[FR Doc. E5-918 Filed 3-4-05; 8:45 am]