We also recommend that the
Department find that the taper candle numbered 16073-2 is excluded from the
order. Regarding Midwest’s exclusion request for the rectangular and square-shaped
candles, we will issue a separate ruling on these candles, shortly.
BACKGROUND
In its December 5, 1995
submission, Midwest asserts that articles FC-9902A and 17256-8 are rectangular
and square-shaped candles and therefore, are outside the scope of the antidumping
order. Midwest further asserts that the third candle, article 16057-2, is outside
the order because it is a novelty candle with an Easter motif. Regarding articles
H061141, 16105-0 and 17257-5, Midwest contends that these three pillar-shaped
candles have decorative materials under the surface of the wax and, thus are
excluded from the order. Finally, Midwest argues that its candle with an asparagus
design, article 16073-2, is shaped in the form of an object and thus, should
be excluded from the order. Along with its submission, Midwest submitted product
samples for each candle.
On July 19, 1996, the National
Candle Association (NCA) submitted comments in response to Midwest’s request:
All of the subject candles
submitted by Midwest fall within the scope of the Order; they are made of
petroleum wax and contain fiber wicks. They are sold in the shape of tapers,
straight-sided dinner candles, pillars or columns. All of these candles
are specifically listed in the scope definition. A simple examination of
the candles themselves and the information supplied by Midwest can only
lead to the conclusion that the subject candles are included within the
scope of the order.
See Letter to the Department
from NCA, July 19, 1996.
ANALYSIS
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, 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 353.29(b) and (i)(1).
Conversely, where the descriptions
of the merchandise are not dispositive, the Department will consider the additional
factors set forth at 19 CFR 353.29(i)(2), These criteria, commonly referred
to as the Diversified Products criteria, are: i) the physical characteristics
of the merchandise; ii) the expectations of the ultimate purchasers; iii) the
ultimate use of the product; and iv) the channels of trade. See 19 CFR 353.29(i)(2);
see also Diversified Products v. United States, 572 F. Supp. 883 (CIT 1983);
Kyowa Gas Chemical v. United States, 582 F. Supp 887 (CIT 1984); and Smith-Corona
v. United States, 678 F. Supp 285 (CIT 1987). The Department applies the Diversified
Products criteria when comparison of the merchandise which is subject to a scope
inquiry to the product descriptions contained in the petition, the determinations
of the Secretary and the ITC, the investigation and the order reveals ambiguity
or uncertainty as to its proper class or kind. 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 five of Midwest’s seven candles are covered by the scope of the order.
We have evaluated this request in accordance with 19 CFR 353.29(i)(l) because
the descriptions of the products contained in the petition, the final determinations
of the Secretary and the ITC, the antidumping duty order, and subsequent scope
rulings are dispositive of the issue. We will issue a ruling with respect to
the two remaining candles shortly 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. The 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) (emphasis added); 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.
Relevant to the present
scope issue regarding the Easter taper, candle Number 16057-2, is a notice we
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., 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).
CIE N-212/85, September
21, 1987; Letter from the Director, Office of Compliance, to Burditt, Bowles
& Radzius, Ltd., July 13, 1987.
Based on the record of this
scope proceeding, we have determined that the Midwest "Easter" taper candle,
article 16057-2, does not meet our definition of a holiday or novelty candle.
The candle’s design does not incorporate scenes depicting religious holidays
or special events. Further, the candle does not possess any exclusionary characteristics
similar to figurine candles or candles shaped as identifiable objects. Although
blue in color with yellow, pink and dark blue spots, nothing in this design
limits the candle to use exclusively at Easter. In fact, the candle’s multiple
spots are not readily identifiable as either Easter eggs or generic eggs, as
claimed by Midwest. Therefore, we conclude that this candle does hot meet the
definition of Holiday Novelty Candles excluded from the scope of the order
The product descriptions
contained in the above listed documents are also dispositive with regard to
the Midwest’s three pillar candles, articles H061141, 16105-0 and 17257-5. According
to the language of the order, pillar candles are within the scope of the order.
Although Midwest argues that the candles have decorative materials under the
wax, these "designs" as such, do not possess any exclusionary characteristics
and do not symbolize any holiday or special event. The first candle’s design
consists of seashells under the surface of the wax. The design of the second
candle has dried flowers on the surface with an additional covering of a thin
film of wax. Finally, the third pillar has pine cones and pine branches under
the surface which are visible from the surface. None of these designs symbolize
a religious holiday or special event. Thus we conclude that these Midwest pillar
candles do not have any characteristics which would exclude them from the scope
of the order.
According to Midwest, article
16073-2, a taper candle, measuring 10 ½" tall, is in the shape of an asparagus
and is excluded from the order since it is in the form of an object. We note
that "candles in the form of identifiable objects" have been previously excluded
from the scope of the antidumping duty order. See CIE n-212/85 Supp. No 6, op.cit.
In addition, prior scope decisions have addressed products similar to the Midwest
merchandise, i.e. candles formed as identifiable objects See e.g. Final Scope
Ruling, the Sun It Corporation, May 16, 1995. In this Ruling, the subject candle
was shaped in the form of a specific fruit and had a wick designed to look like
a stem. Upon physical examination, we agree that the Midwest candle is also
shaped in the form of a specific vegetable and possesses a top similar to that
found on a spear of an asparagus. Thus, the candle is in the form of an identifiable
object and therefore, qualifies as a novelty candle which is excluded from the
scope of the antidumping order.
RECOMMENDATION
Because the product description
provides a sufficient basis for making a determination, and the issue can be
resolved by making reference to the descriptions of the product contained in
the petition, the final determinations of the Secretary and the ITC, and subsequent
scope rulings, we recommend that no formal inquiry is warranted. Based on the
analysis as discussed above, we further recommend that the Department find that
the one candle described as an Easter motif candle and the three taper candles
are within the scope of the antidumping duty order on petroleum wax candles
from the PRC. Additionally, we recommend that the one candle described as an
Asparagus candle be excluded from the scope of the antidumping duty order on
petroleum wax candles from the PRC because it is the form of an identifiable
object.
_____√_____ Agree
___________ Disagree
If you agree, we will send
a letter to the interested parties enclosing this memorandum, and will notify
the U.S. Customs Service of our determination.
Jeffrey P. Bialos
Principal Deputy Assistant Secretary
for Import Administration
October
30, 1996
Date