| MEMORANDUM
FOR: |
Joseph
A. Spetrini
Deputy
Assistant Secretary
Enforcement Group III |
| FROM:
|
Richard
Weible, Director
Office Eight
|
| SUBJECT:
|
Final
Scope Ruling - Antidumping Duty Order on Petroleum Wax
Candles From the Peoples Republic of China (A-570-504);
Meijer Inc. |
SUMMARY
On April
28, 1998, Meijer Inc. (Meijer) requested that the Department
of Commerce (the Department) find that certain candles it
imports are outside the scope of the antidumping duty order
on petroleum wax candles from the People’s Republic of China
(PRC).
Based
on an analysis of the information on the record, as defined
below, and in accordance with 19 CFR 35l.225(k)(1), we recommend
that the Department determine that the following Meijer candles
are included in the scope of the order:
• Sweetheart
Tapers, UPC# 02316706012
• Wax-filled
glass container, Item # 30085
In addition,
we recommend that the Department determine that the following
Meijer candles are not within the scope of the antidumping
duty on petroleum wax candles from the PRC:
• Wax-filled
porcelain bunny, UPC# 70623669720
• Easter
tapers with chick attached, UPC# 76023690981
• Easter
Bunny head tea light, UPC# 76023678909
• Valentine
hearts tea light, UPC# 76023690879
• Heart-shaped
candle on wax heart base, Item # P59858
• "Candy
kiss" candle, Item # P63797R/W/G
• Bunny
Long Ears Flame Candle, UPC# 02316704130
BACKGROUND
On April
28, 1998, Meijer wrote to the Department seeking clarification
as to whether ten candles it imports are covered by the antidumping
duty order on petroleum wax candles from the PRC (51 FR 30686,
August 28, 1986). Meijer describes the candles for which it
is requesting a scope determination as follows:
1) A
wax-filled gray porcelain bunny with pink paws and belly;
3" tall and 10" in circumference at its widest point. Meijer
asserts that exclusion from the order is warranted because
the candle is a three-dimensional identifiable object sold
exclusively during the Easter season.
2) 3
1/2" tall poly-resin Easter Bunny figurine designed to hold
a "bunny ear" candle. Meijer claims this candle is sold
exclusively during Easter and that it should accordingly
be excluded from the scope of the order.
3) A
set of two 10" yellow tapers with orange molded chick attached
which Meijer asserts is a novelty candle sold exclusively
during Easter.
4) A
set of six 2" white petroleum wax "Easter Bunny head" tea
lights. Meijer argues that these candles are identifiable
objects sold only during the Easter season.
5) A
set of six red Valentine heart tea lights sold exclusively,
Meijer argues, for Valentine’s Day. Meijer also claims these
candles represent an identifiable object.
6) 3"
by 9 1/2" glass container filled with pink vegetable wax
and decorated with yellow chicks, Easter eggs, and spring
flowers. While candles made from vegetable wax are not included
in the scope of the order on petroleum wax candles from
the PRC, Meijer requests that the Department advise it as
to whether this candle would be included in the scope of
the order if it were made instead of petroleum wax.
7) A
set of two red "sweetheart taper" candles 10" in height
with individual heart shapes stacked atop one another. The
word "LOVE" is spelled in gold on the front of each candle.
Meijer contends this candle is both an identifiable object
and limited to use for Valentine’s Day.
8) A
wax-filled glass candle holder decorated with hearts. Meijer
maintains this candle is sold exclusively for Valentine’s
Day.
9) A
heart-shaped candle supported by a heart-shaped wax base;
4" tall with "My Heart Burns for You" written in white letters
across the front. Meijer claims it is both an identifiable
object and sold only for Valentine’s Day.
10)
Gold "candy kiss" candle 5" tall and 10" in circumference
that is, according to Meijer, an identifiable object that
should be excluded as a novelty candle.
ANALYSIS
The regulations
governing the Department’s antidumping scope determinations
can be found at 19 CFR 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 determinations of the Secretary and the International
Trade Commission (ITC), the initial investigation and the
order. This 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 CFR 351.225(d).
Conversely,
where the descriptions of the merchandise are not dispositive,
the Department will consider the additional factors set forth
at 19 CFR 351 .225(k)(2). These criteria are: i) the physical
characteristics of the merchandise; ii) the expectations of
the ultimate purchaser; iii) the ultimate use of the product;
iv) the channels of trade in which the product is sold; and
v) the manner in which the product is advertised and displayed.
The Department applies these criteria when the product descriptions
contained in the petition, the determinations of the Secretary
and the ITC, the investigation and the order are ambiguous
or unclear. 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 the
instant case, the Department has determined that no formal
inquiry is warranted to determine whether or not Meijer’s
candles are covered by the scope of the order. We have evaluated
this request in accordance with 19 CFR 351.225(k)(1) because
the descriptions of the products contained in the petition,
the final determinations of the Secretary and the ITC, and
the antidumping duty order are, in fact, dispositive.
Documents
and parts thereof from the underlying investigation deemed
relevant by the Department to the scope of the outstanding
order were made part of the record of this determination and
are referenced herein. Documents that were not presented to
the Department, or placed by it on the record, do not constitute
part of the administrative record for this scope determination.
In its
petition of September 4, 1985, the National Candle Association
requested that the investigation cover:
candles
[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.
Antidumping
Petition. September 4, 1985 at 7.
The Department
defined the scope of the investigation 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.
Petroleum
Wax Candles from the People ‘s Republic of China: Initiation
of Antidumping Duty Investigation, 50 FR 39743 (September
30, 1985); see also Preliminary Determination of Sales at
Less Than Fair Value, 51 FR 6016 (February 19, 1986), Final
Determination, 51 FR 25085 (July 10, 1986), and Antidumping
Duty Order: Petroleum Wax Candles from the People's Republic
of China, 51 FR 30686 (August 28, 1986). The ITC adopted a
similar definition of the "like product" subject to its determinations
noting that the investigations did not include "birthday,
birthday numeral and figurine type candles." See Determinations
of the Commission (Final), USITC Publication 1888, August
1986, at 4, note 5, and A-2.
Also of
relevance to Meijer’s scope inquiry is a notice issued to
the United States Customs Service in connection with a July
1987 scope determination, 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., religions holidays or special
events) depicted in their designs, figurine candles, and
candles shaped in the form of identifiable objects (e.g.,
animals or numerals).
CIE N-212/85,
September 21, 1987; see also Letter from the Director, Office
of Compliance, to Burditt, Bowles & Radzius, Ltd., July
13, 1987.
1) Wax-filled
Porcelain Bunny
Meijer
asserts that a wax-filled porcelain bunny which it imports
is an identifiable object sold solely in connection with the
Easter season and that as such, this candle meets the criteria
set forth for exclusion from the scope of the order. The Department
has previously addressed several scope requests involving
wax-filled containers. In each of these scope rulings, the
Department considered the physical configuration of the container
as well as the candle itself when making its determination.
As the order specifically lists both candles and wax-filled
containers, exclusionary design characteristics may either
be found on the candle or the container in which the candle
is held. See, e.g., Final Scope Ruling, Primark International,
June 9, 1993. As indicated above, Meijer’s product is a three-dimensional
porcelain bunny filled with petroleum wax. Because we consider
the physical characteristics of a container in which a candle
is held in making our scope determination, and because Meijer’s
porcelain container is an identifiable object (i.e., a bunny),
we have determined that this candle meets the criterion set
forth for exclusion from the scope of the order on petroleum
wax candles from the PRC.
2) ‘Bunny
Long Ears "Flame Candle
Regarding
Meijer’s "bunny long ears" flame candle, while the Department
considers the physical characteristics of a container in which
a candle is placed in making its determinations, we note that
this particular poly-resin figurine is not a wax-filled container
per se. Meijer’s bunny figurine wears a hat which has been
hollowed out to accommodate the wax "bunny long ears" candle.
The poly-resin figurine is, then, much like a candle holder
designed to hold taper or dinner candles. Accordingly, in
making our determination regarding Meijer’s candle we have
not evaluated the characteristics of the poly-resin figurine
because we do not consider this product to be a wax-filled
container. The issue before the Department, then, is whether
the candle is itself subject to the scope of the order. Meijer’s
candle, which measures approximately 3 1/2" height, is shaped
in the form of an identifiable object (i.e.,"bunny ears").
As such, the company’s "bunny long ears" flame candle qualifies
for exclusion from the scope of the antidumping duty order
on candles from the PRC.
3) Yellow
Tapers with Chicks Attached
With regard
to Meijer’s yellow tapers, we note that the letter to Customs
on September 21, 1987 (see above) clearly includes figurine
candles within the definition of novelty candles excluded
from the scope of the order. In a prior scope ruling covering
a product similar to Meijer’s Easter tapers, we determined
that figurine candles are excluded from the scope of the order
when the removal of the figurine would cause damage to the
taper. See Global Marketing Services Final Scope Ruling, October30,
1986. See also Final Scope Ruling, Two’s Company, January
13, 1995 (taper with angel figurine outside scope), and Final
Scope Ruling, A.J. Cohen Co., June 16, 1994 (taper with Santa
Claus figurine outside scope). After physical inspection of
Meijer’s candle, we conclude that the chick, which is an identifiable
object, cannot be removed without damaging the candle. Therefore,
we have determined that this candle clearly meets the description
of a novelty candle, merchandise specifically excluded from
the scope of the order on petroleum wax candles from the PRC.
4, 5)
‘Valentine Heart"and ‘Easter Bunny Head" Tea Lights
Meijer
asserts that these particular candles are identifiable objects
which should be excluded from the scope of the order as novelty
candles. In the past, the Department has ruled that certain
candles shaped as identifiable objects qualify for exclusion
firm the scope of the order on petroleum wax candles from
the PRC. See, e.g., Sun-It Corporation Final Scope Ruling,
May 16, 1995 ("gigantic fruit" and pumpkin candles outside
scope) and San Francisco Candle Company Final Scope Ruling,
June 10, 1993 (mushroom candle outside scope). While we do
not agree with Meijer that these candles warrant exclusion
from the scope of the order on the basis of being "holiday"
candles sold exclusively for Valentine’s Day or Easter, we
do agree that these candles qualify for exclusion because
they are identifiable objects (i.e., a heart and a bunny).
6) Vegetable
Wax Candle in a Decorative Glass
As indicated
above, Meijer has asked the Department to clarify whether
or not this candle would be included in the scope of the antidumping
duty order on petroleum wax candles were it made instead of
petroleum wax. While Meijer correctly assumes that a candle
made from vegetable wax is not included in the scope of the
order, we are unable to offer an advisory opinion on the hypothetical
issue of whether or not the same candle filled with petroleum
wax would qualify for exclusion. Meijer is welcome to file
a separate scope inquiry with the Department at such time
it begins importing petroleum wax candles in decorative glass
jars.
7) Sweetheart
Tapers
Meijer
suggests that its 10" sweetheart tapers should be excluded
from the scope of the order because the candles are formed
of "heart shapes stacked one on top of the other" which meet
the "identifiable object" criterion. While we agree with Meijer
that candles in the form of identifiable objects are excluded
from the scope of the order, we cannot agree that this particular
candle meets the "identifiable object" exclusion criterion.
Meijer’s "sweetheart taper," as indicated by its packaging,
does not appear to be an identifiable object when viewed as
a whole. Rather, this product is merely a red taper candle
with a fiber wick made of petroleum wax, specifically included
in the scope of the order. In addition, in response to Meijer’s
implication that the presence of the word "love" on the face
of the taper limits its use to Valentine’s Day, we note that
"love" is not indicative of a particular holiday nor is it
associated exclusively with Valentine’s Day. See Final Scope
Ruling, Meijer, Inc., December 15, 1997 (candles embossed
with "Joy" and "Peace" found within scope). Therefore, we
determine that these "sweetheart tapers" are included in the
scope of the order on petroleum wax candles from the PRC.
8) Wax-filled
Glass Container with Decorative Hearts
In its
request Meijer suggests that the decorative hearts appearing
on this wax-filled glass container limit its use to Valentine’s
Day. The Department has previously issued scope rulings involving
various wax-filled containers. For example, we found that
wax-filled containers with floral, fruit, and marine patterns
imported by Star Merchandise were within the scope of the
order because there was nothing inherent in the design of
the candle itself that related to a specific holiday or other
special occasion. See Final Scope Ruling, Star Merchandise
Co., Inc., July 27, 1994 at 6. As with the Star products,
there is nothing about the Meijer candle itself nor its glass
container that limits its use solely to Valentine’s Day. The
year-round ubiquity of a heart renders it meaningless as a
holiday scene or symbol. Meijer’s candle is merely a petroleum
wax-filled container, and as such is included in the scope
of the order on petroleum wax candles from the PRC.
9) Heart-shaped
Candle on a Wax Heart Base
Like Meijer’s
"Valentine Heart" and "Easter Bunny Head" candles, the company’s
heart-shaped candle with a wax heart base qualifies for exclusion
from the order on petroleum wax candles from the PRC on the
grounds that it is an identifiable object (i.e., a heart)
and not because of Meijer’s suggestion that it is sold exclusively
in connection with Valentine’s Day. As noted above regarding
Meijer’s wax-filled glass with decorative hearts, we do not
consider a heart to be a holiday scene or symbol because of
its year-round ubiquity. See Spring-water Cookie & Confection,
Inc. v. United Slates, Slip Op. 96-160 (CIT 1996).
10) Candy
Kiss Candle
Meijer
asserts that its gold "candy kiss" candle wrapped in cellophane
warrants exclusion from the scope of the order as an identifiable
object. We agree with Meijer that this particular candle meets
the criterion set forth for exclusion. Shaped and colored
to resemble a candy kiss chocolate candy, Meijer’s candle
represents an identifiable object and is therefore not included
in the scope of the order on petroleum wax candles from the
PRC.
CONCLUSION
Based
on the evidence in the record of this scope inquiry, we conclude
that Meijer’s wax-filled porcelain bunny, yellow Easter tapers,
"bunny long ears" flame candle, "bunny head" and Valentine
heart tea lights, heart-shaped candle on a wax heart base,
and "candy kiss" candle are outside the scope of the order
on petroleum wax candles from the PRC. In addition, we have
also determined that Meijer’s wax-filled glass container with
decorative hearts and sweetheart tapers are within the scope
of the order on petroleum wax candles from the PRC.
RECOMMENDATION
We recommend
that the Department find Meijer’s wax-filled porcelain bunny,
"bunny long ears" flame candle, yellow Easter tapers, "bunny
head" and heart-shaped tea lights, heart-shaped candle on
a wax heart base, and "candy kiss" candle outside the scope
of the antidumping duty order on petroleum wax candles from
the PRC.
_____a
_____Agree ___________Disagree
We also
recommend that the Department find Meijer’s wax-filled glass
container with decorative hearts and sweetheart tapers within
the scope of the order on petroleum wax candles from the PRC.
_____a
_____Agree ___________Disagree
If you
agree, we will send the attached letter to interested parties
and notify the U.S. Customs Service of our determination
Joseph
A. Spetrini
Deputy Assistant Secretary
AD/CVD Enforcement Group III
6-11-98
Date