SUMMARY

On September 3, 1998, Ocean State Jobbers, Inc. ("Ocean State") requested that the Department of Commerce ("the Department") issue a scope ruling on whether candles manufactured in the People’s Republic of China ("PRC") and imported by Ocean State are covered by the antidumping duty order on petroleum wax candles from the PRC.

We have determined that Ocean State’s candles consisting of 80 percent beeswax and 20 percent petroleum wax are not petroleum wax candles as defined by the scope of the antidumping duty order on petroleum wax candles from the PRC. Thus, the candles subject to this inquiry are outside the scope of the antidumping duty order.

BACKGROUND

In its September 3, 1998 request for a scope ruling, Ocean State described the tapers and votive candles subject to this inquiry as consisting of 80% beeswax and 20% petroleum wax.

ANALYSIS

The regulations governing the Department’s antidumping scope determinations are found at section 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 section 351.225(d).

Conversely, where the descriptions of the merchandise are not dispositive, the Department will consider the five additional factors set forth at section 351.225(k)(2). These criteria are: i) the physical characteristics of the merchandise; ii) the expectations of the ultimate purchasers; 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 evaluated Ocean State’s request in accordance with section 351.225(k)(l) 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:

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:

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.

The product descriptions contained in the above listed documents are dispositive. The Department has determined, based on the ITC’s final determination, the determinations of the Secretary, the original language in the petition, and the circumstances of this particular case, that Ocean State’s candles are not "petroleum wax" candles as defined in the scope of the order.

In its determination of injury to the domestic industry, the International Trade Commission ("ITC" or "Commission") considered the issue of whether candles containing a mixture of petroleum wax and other "natural" waxes were to be included in their like product determination. ITC Determination at 4. Specifically, the ITC determined that certain blended petroleum wax and beeswax candles are not "like" or "similar" products to the petroleum wax candles covered under the scope of the order. ITC Determination at 5.

NCA asserted in its comments that "beeswax candles are made of 100 percent beeswax," and that "if any PRC petroleum wax is added to a beeswax candle, the resulting adulterated or blended candles must be treated as a dumped candle and subject to the Antidumping Order." NCA ‘s Comments at 5. NCA’s assertions on these issues are not persuasive. The ITC determined that certain blended candles which are composed of less than 100 percent petroleum wax are not a like product and therefore, are outside the scope of the antidumping duty order on petroleum wax candles from the People’s Republic of China. Ocean State’s candles, made of 80 percent beeswax and 20 percent petroleum wax, are similar to those candles excluded from the ITC’s like product determination.

In response to Ocean State’s assertion that its candles are used for "illumination," NCA stated that both petroleum wax candles and the candles subject to this inquiry are used for the same purposes. NCA’s comment is valid. However, as mentioned above, the ITC determined that certain blended candles similar to the Ocean State candles were not like products to petroleum wax candles. Therefore, the candles are outside the scope of the order irrespective of the novelty exclusion. Ocean State’s candles, made of 80 percent beeswax and 20 percent petroleum wax, are similar to those candles excluded from the ITC’s like product determination, and therefore, are outside the scope of the antidumping duty order on petroleum wax candles from the People’s Republic of China.

RECOMMENDATION

We recommend the Department find that Ocean State’s candles made from 80 percent beeswax and 20 percent petroleum wax are outside the scope of the antidumping duty order on petroleum wax candles from the PRC.

_____√_____Agree ___________Disagree

If you agree, we will send the attached letter to the interested parties, and will notify the U.S. Customs Service of our determination.

Joseph A. Spetrini
Deputy Assistant Secretary
Enforcement Group III

12/17/98

Date

Attachment