MEMORANDUM FOR:
|
Joseph
A. Spetrini
Deputy Assistant Secretary
Enforcement Group III |
|
FROM: |
Roland
L. MacDonald
Executive Director
Enfforcement Group III, Office 7 |
SUBJECT: |
Final
Affirmative Scope Ruling - Antidumping Duty Order on Petroleum Wax Candles
From the Peoples Republic of China(A-570-504); Endar Corp. |
SUMMARY
On November 9, 1998, Endar
Corp. ("Endar") requested that the Department of Commerce (‘The Department")
issue a scope ruling on whether floating round candles are covered by the antidumping
duty order on petroleum wax candles from the People’s Republic of China ("PRC").
In accordance with 19 CFR 351.225(k)(1), we recommend that the Department determine
that Endar’s floating round candles are covered by the scope of the antidumping
duty order.
ANALYSIS
The regulations governing
the Department’s antidumping scope determinations are 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 antidumping duty 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 five
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 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 Endar’s request in accordance with 19 CFR §351.225(k)(l)
because the descriptions of the products contained in the petition, the final
determinations of the Secretary and the ITC, the initial investigation, 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:
[C]andles [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 tan 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 ("ITC Determination").
Also of relevance to the
present 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., 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-2l2/85, September
21, 1987; Letter from the Director, Office of Compliance, to Burditt, Bowles
& Radzius, Ltd., July 13, 1987.
The product descriptions
contained in the above listed documents are dispositive. The Department has
determined, based on the product descriptions, that Endar’s floating candles
are petroleum wax candles, each with a wick, and in the shape of a round. Endar
described the candles subject to this inquiry as floating candles that are molded
from whipped wax to make them as light as possible and then dipped in colored
wax. Endar asserted that these candles should be excluded from the order because
they are novelty items.
In its comments, the National
Candle Association ("NCA") argues that the candles subject to this inquiry are
made from petroleum wax, contain fiber wicks, and are rounds. NCA asserts that
the candles subject to this inquiry would not quality for the novelty exclusion,
as they are not specifically designed for any special holiday, and they can
be sold and used throughout the year. Furthermore, NCA states that molded candles,
as well as poured candles, are included within the scope of the order. Finally,
NCA argues that there are no exclusions for "floating" candles from the order.
The Endar floating candles
are made from petroleum wax and contain wicks. They are not designed to be used
for a specific holiday and therefore do not qualify for the holiday novelty
exclusion. Additionally, attached to Endar’s scope request are photocopies of
pages from the 1998 Colony Gift Corporation catalog, which Endar states "advertise[s]
the same identical merchandise as our floating candles," and which refers to
the subject candles as "floating rounds." Thus, the subject candles are not
identifiable objects, but rather are properly identified as "rounds," which
are included in the scope of the order.
Endar’s candles are petroleum
wax candles, contain wicks, and are in the shape of rounds. Therefore, the Department
has determined that Endar’s candles are within 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 Endar’s floating round candles are within 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
DEC 24, 1998
Date
Attachment