By Certified Mail, Return
On May 11, 1994, Success
Sales, Incorporated, (Success) requested the Department of Commerce (the Department)
to issue a ruling that its set of "Holiday Pillar Candles" (Success item number
SS-40425) be found outside the scope of the antidumping duty order on petroleum
wax candles from the People’s Republic of China (PRC).
We evaluated Success’s application
in accordance with the criteria provided in 19 C.F.R. 353.29(i)(2) (1993). Based
on an analysis of the physical characteristics, the expectations of the ultimate
purchaser, the end use, and the channels of trade, the Department determines
that the Success SS-40425 candles set is outside the scope of the order.
Enclosed is a memorandum
explaining our decision. We will notify Customs of this decision. If you have
any questions, please contact Robert M. James or Wendy J. Frankel at (202) 482-5222,
or (202) 482-5253, respectively.
Laurie A. Lucksinger
Director, Division I
Office of Antidumping Compliance
Joseph A. Spetrini
Deputy Assistant Secretary for Compliance
Director Office of Antidumping Compliance
Scope Ruling - - Petroleum Wax Candles From the People’s Republic of China;
Success Sales, Inc.
On May 11, 1994, Success
Sales, Inc. (Success) requested that the Department of Commerce (the Department)
determine that Success’s candle set, item number SS-40425 (the Success candle
set), is outside the scope of the antidumping duty order on petroleum wax candles
from the People’s Republic of China (PRC). Success argued that its set comprises
"Christmas novelty candles which are not of the class or kind of merchandise
to which the antidumping order applies." See Letter, Success Sales to the Department,
May 11, 1994 (Success Letter).
Based on an analysis of
the information on the record, as defined below, and in accordance with 19 CFR
353.29(i)(2), the Department determines that the Success candle set, which consists
of three pillars with holiday scenes incorporated into their design, is outside
the scope of the order.
The regulations governing
the Department’s antidumping scope determinations can be found at 19 CFR 353.29.
On matters concerning the scope of an antidumping duty order, our normal bases
for determining whether a product is included within the scope of the order
are the descriptions of the product contained in the order, the determinations
of the Secretary and the International Trade Commission (ITC), the initial investigation,
and the petition. See 19 CFR 353.29(b) and (i)(1). If these descriptions are
not dispositive, the Department considers the four additional criteria found
at 19 CFR 353.29(i)(2). These criteria are: (1) the physical characteristics
of the product; (2) the expectations of the ultimate purchasers; (3) the ultimate
use of the product; and (4) the channels of trade. Because the descriptions
are not dispositive, we evaluated this request in accordance with 19 CFR 353.29(i)(2).
The information obtained from Success’s request, and from examination of the
Success sample, is sufficient for the Department to make a ruling in this scope
matter. Therefore, the Department has determined that no formal inquiry is warranted.
See 19 CFR 353.29(b).
Documents from the underlying
investigation, or parts thereof, and subsequent decisions deemed relevant by
the Department to the scope of the outstanding order were made a part of the
record of the present scope inquiry. Documents not presented to the Department,
or placed by it on the record, do not constitute part of the administrative
record of this scope proceeding.
The Department defined the
scope of the original order as:
...[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-aided dinner candles; rounds, columns, pillars, votives; and
various wax-filled containers.
Antidumping Duty Order:
Petroleum Wax Candles from the People’s Republic of China, 51 FR 30686 (August
Relevant to the present
scope issue is a notice issued to Customs 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., 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 CIE N-212/85, September
21, 1987; and Letter from the Director, Office of Compliance to Burditt, Bowles
& Radzius, Ltd., July 13, 1987.
The Success product consists
of three pillar candles packaged as a set. Each candle has a specific scene
depicted through painted raised-relief and painted etched designs around the
Success, in its scope request,
has identified the pillars by the specific design incorporated into each candle.
See Success Letter, May 6, 1994, pages 2 and 3. Our physical examination of
the sample set revealed three candles, each measuring 5-¼ inches tall and 2-¼
inches in diameter. The candles are wrapped separately in cellophane and packaged
in a cardboard box. Each is described below:
The "Nativity Scene" pillar
is composed of red wax. It features painted, raised-relief images of Mary and
Joseph standing beside the baby Jesus. The backdrop for the crèche is
a large star shape cut deeply into the candle, and painted black. To one side,
a raised-relief lamb is visible; to the other, three gold raised-relief Wisemen
approach the manger. In addition, a white star is visible high above, and behind,
the Joseph figure. See Success Letter, page 3.
The "Snow Scene" candle
has a white wax base, and features raised relief figurines representing a horse-drawn
sleigh with two occupants. The sleigh and horse are gold, while the occupants
are painted in red. The sleigh is shown passing in front of a red house with
white paint indicating snow on the roof and dormers. Also in the foreground
is a raised relief fir tree, painted green with white "snow". The background
is covered with etchings of deciduous and evergreen trees. Id.
The "Christmas Bells" candle
is green. It features two identical scenes on opposite sides of the pillar.
Two raised-relief bells, painted gold and red, are depicted beneath a raised-relief
red bow. The bells and bow are presented on a backdrop of etched evergreen boughs,
which are lightly traced with green paint.
Our examination of the subject
candles clearly establishes that the designs are an integral part of all three
candles. The "Nativity Scene", with its patently religious figures, is a type
of "Christmas novelty candle." Further, the "Christmas Bells" candle, which
features holiday bows and bells set against pine boughs, is consistent with
products designed primarily for use in connection with the holiday season. Based
on the physical characteristics criterion, these two candles are not of the
type to be included in the scope of the order.
The "Snow Scene" candle
merely represents a calendar season, i.e., winter, as there is nothing in this
candle’s design indicating any specific holiday or occasion whatsoever. Therefore,
we cannot conclude on the basis of physical characteristics alone that the "Snow
Scene" candle is the type of candle excluded from the order.
Expectations of the Ultimate
Purchaser and Ultimate Use
The candles are packaged
in a white box labeled "Holiday Pillar Candles" on all six sides. Further, the
front and back panels feature a color photograph of the three pillars, with
the additional legend "Set of 3" at the bottom. Success maintains that this
packaging, coupled with "the permanency of the holiday scenes," limits the product’s
use to display during the Christmas holiday season. See Success Letter, p.7.
Based on a review of the packing, the Department concludes that the ultimate
purchaser of this product is the retail consumer, who expects to use this product
for home holiday purposes only. Moreover, the Department also concludes, based
on the packing and the decorations, that the candles are used for holiday purposes
only. Therefore, because the customer’s expectations and uses relate to holiday
purposes, the expectations of the ultimate purchaser and the ultimate use of
these products are the same as those of products excluded from the scope of
the order. See Petition, March 3, 1985, p.7; Success Letter, op. cit.
Channels of Trade
The ITC found that the candles
subject to the order are sold both directly to retailers and to wholesalers.
See Candles from the People’s Republic of China, USITC Pub. 1768, October 1985,
p.4. The ITC found that many retailers "only purchase Chinese candles in red,
white and green for the Christmas season, and...primarily rely on domestic candles
for their everyday displays." Id., p.A-2. Success claims it has only one
outlet for this product: "United States Purchasing Exchange," a mail-order retailing
firm. Success Letter, p.7-8. Attached to this letter is a catalog from the mail-order
company. Id., Exhibit B. While this catalog advertises a broad array of goods,
it also displays numerous Christmas items, including the subject candles. Id.,
Exhibit B-47. From our examination of the packaging and advertising of these
candles, as well as the ITC findings cited above, we conclude the Success candles
are customarily marketed during the Christmas holiday season by a mail-order
retailer targeting the holiday-season market. This channel of trade is consistent
with that of products previously excluded from the order.
Our analysis of the record
of this scope request, as well as an analysis of the physical characteristics
of these particular candles, the expectations of the ultimate purchaser, the
ultimate use of the product, and the channels of trade, support the conclusion
that the Success candle set falls outside the scope of the antidumping duty
order on petroleum wax candles from the PRC. While the "Snow Scene" candle’s
physical characteristics are rather inconclusive, our analysis of the remaining
three criteria, coupled with the fact that these candles are marketed as a set,
leads us to base our determination on the set as a whole.
Because the product description
provides sufficient basis for making a determination, and the issues can be
resolved by making reference to the descriptions of the product contained in
the order, the final determinations of the Secretary and the ITC, the petition,
and subsequent scope rulings, we recommend determining that no formal inquiry
We further recommend that
the Department find the Success candle set, which consists of Christmas novelty
candles, outside the scope of the antidumping duty order on petroleum wax candles
from the PRC.
If you agree, we recommend
sending the attached letter to interested parties.
Joseph A. Spetrini
Deputy Assistant Secretar for Compliance