United States Court of Appeals
for the Federal Circuit
__________________________
TARGET CORPORATION, QINGDAO KINGKING
APPLIED CHEMISTRY CO., LTD.,
DALIAN TALENT GIFT CO., LTD., SHANGHAI
AUTUMN LIGHT ENTERPRISE CO.,
LTD., ZHONGSHAN ZHONGNAM CANDLE
MANUFACTURER CO., LTD.,
AMSTAR BUSINESS CO., LTD., JIAXING
MOONLIGHT CANDLE ART CO., LTD.,
AND SHONFELD’S (USA), INC.,
Plaintiffs,
and
NANTUCKET DISTRIBUTING CO., INC.,
Plaintiff-Appellant,
and
SPECIALTY MERCHANDISE CORPORATION,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee,
and
NATIONAL CANDLE ASSOCIATION,
Defendant-Appellee.
__________________________
2009-1518, -1519
__________________________
TARGET CORP v. US 2
Appeal from the United States Court of International
Trade in consolidated case No. 06-00383, Judge Leo M.
Gordon.
____________________
Decided: June 21, 2010
____________________
NED H. MARSHAK, Grunfeld, Desiderio, Lebowitz,
Silverman & Klestadt LLP, of New York, New York,
argued for all plaintiffs-appellants. With him on the brief
for Nantucket Distributing Co. Inc. were MAX F.
SCHUTZMAN and ANDREW T. SCHUTZ. Counsel for plain-
tiff-appellant Specialty Merchandise Corporation were
JEFFREY S. NEELEY, STEPHEN W. BROPHY and MATTHEW T.
MCGRATH, Barnes, Richardson & Colburn, of Washington,
DC.
MICHAEL J. DIERBERG, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued for defendant-
appellee United States. With him on the brief were TONY
WEST, Assistant Attorney General, JEANNE E. DAVIDSON,
Director, and FRANKLIN E. WHITE, JR., Assistant Director.
Of counsel was ANTONIA R. SOARES, Trial Attorney.
KAREN A. MCGEE, Barnes & Thornburg LLP, of Wash-
ington, DC, argued for defendant-appellee National
Candle Association. With her on the brief was RANDOLPH
J. STAYIN.
__________________________
3 TARGET CORP v. US
Before RADER, Chief Judge, * GAJARSA, and PROST, Circuit
Judges.
GAJARSA, Circuit Judge.
This case comes to us on appeal from the Court of In-
ternational Trade. At issue is whether the Court of
International Trade correctly sustained the U.S. Depart-
ment of Commerce’s (“Commerce”) final affirmative
circumvention determination that petroleum wax candles
with 50% or more vegetable wax (“mixed-wax candles”)
are later-developed merchandise covered by the anti-
dumping duty order on petroleum wax candles from
China. Target Corp. v. United States, 626 F. Supp. 2d
1285 (Ct. Int’l Trade 2009) (“Target II”). Because Com-
merce’s reasonable interpretation of the relevant Con-
gressional statute is entitled to Chevron deference and
because Commerce’s determination rested on substantial
evidence, we affirm.
BACKGROUND
I.
Importers of goods into the United States are subject
to antidumping duties under Section 736(a) of the Tariff
Act of 1930 if (1) Commerce finds that “a class or kind of
foreign merchandise is being, or is likely to be, sold in the
United States at less than fair value [(“LTFV”)];” and (2)
the U.S. International Trade Commission (“ITC”) finds
that a domestic industry is materially injured (or is
threatened with material injury) or the establishment of
an industry in the United States is materially retarded
“by reason of imports of that merchandise, or by reason of
sales (or the likelihood of sales) of that merchandise for
importation.” 19 U.S.C § 1673 (emphasis added); see also
* Randall R. Rader assumed the position of Chief
Judge on June 1, 2010.
TARGET CORP v. US 4
Viraj Group v. United States, 476 F.3d 1349, 1351 (Fed.
Cir. 2007).
To combat circumvention of antidumping orders,
“Congress has provided that Commerce’s consideration of
certain types of articles within the scope of an [antidump-
ing duty] order will be a proper clarification or interpreta-
tion of the order instead of improper expansion or change
even where these products do not fall within the order’s
literal scope.” Wheatland Tube Co. v. United States, 161
F.3d 1365, 1370 (Fed. Cir. 1998). These articles include:
(1) merchandise completed or assembled in the United
States whose “parts or components [are] produced in the
foreign country with respect to which [an antidumping
duty] order . . . applies,” 19 U.S.C. § 1677j(a);
(2) merchandise “completed or assembled in another
foreign country from merchandise which . . . is subject to
[an antidumping duty] order or . . . is produced in the
foreign country with respect to which [the] order . . .
applies,” id. § 1677j(b); (3) merchandise “altered in form
or appearance in minor respects . . . whether or not in-
cluded in the same tariff classification,” id. § 1677j(c); and
(4) later-developed merchandise that would have been
included in the order, see id. § 1677j(d).
This case involves the last category of those articles,
“later-developed” merchandise, which is governed by 19
U.S.C. § 1677j(d). Section 1677j(d) codifies Commerce’s
administrative practice for analyzing whether later-
developed merchandise falls within the scope of an anti-
dumping duty order. See H.R. Rep. No. 100-576, at 601
(1988), reprinted in 1988 U.S.C.C.A.N. 1547, 1634 (“This
provision is intended to clarify and codify current Com-
merce Department authority, which has been recognized
by the courts.”).
5 TARGET CORP v. US
II.
In 1986, Commerce issued an antidumping duty order
on petroleum wax candles from China. Petroleum Wax
Candles from the People’s Republic of China, 51 Fed. Reg.
30,686 (Aug. 28, 1986) (“Candles Antidumping Order”).
In the LTFV proceeding, Commerce defined the subject
merchandise, in relevant part, as “petroleum wax candles
made from petroleum wax.” Petroleum Wax Candles from
the People’s Republic of China, 51 Fed. Reg. 25,085 (Jul.
10, 1986). For the corresponding injury investigation, the
ITC defined the domestic like product, in relevant part, as
candles “composed of over 50 percent petroleum wax.”
Candles from the People’s Republic of China, USITC Pub.
1888, Inv. No. 731-TA-282, at 2-3 (Aug. 1986) (“ITC Final
Report”).
Commerce, in a series of scope determinations, recog-
nized that the ITC’s percentage-based like product defini-
tion mandated that candles containing less than 50%
petroleum wax be excluded from the scope of the Candles
Antidumping Order. See, e.g., Petroleum Wax Candles
from the People’s Republic of China, Final Scope Ruling,
A-570-504 (Dec. 10, 1998) (“Costco Wholesale”) (candles
composed of 19% petroleum wax and 81% beeswax ex-
cluded from the Candles Antidumping Order for not
satisfying Commission’s like product definition of petro-
leum wax candles).
In 2004, the domestic interested party, the National
Candle Association (“NCA”), petitioned Commerce to
initiate a later-developed merchandise anticircumvention
inquiry and determine whether petroleum candles “con-
taining palm or vegetable wax as the majority ingredient”
were circumventing the Candles Antidumping Order.
NCA claimed that the late-1990s development of mixed-
wax candles, which allegedly were indistinguishable by
TARGET CORP v. US 6
the consumer from petroleum wax candles, enabled
importers to completely avoid paying antidumping duties
on 87% of their candles imported from China. In March
2005, Commerce initiated the inquiry. Petroleum Wax
Candles from the People’s Republic of China, 70 Fed. Reg.
10,962, 10,963 (Mar. 7, 2005) (“Notice of Initiation”).
As Commerce was commencing the later-developed
merchandise anticircumvention inquiry, the ITC was
coincidentally conducting a second five-year sunset review
of the Candles Antidumping Order. See Candles from the
People’s Republic of China, USITC Pub. 3790, Inv. No.
731-TA-282 (July 2005) (“Second Sunset Review”). The
lone participant in the Second Sunset Review, NCA, urged
the ITC to re-examine the domestic like product definition
from the ITC Final Report and include “all blended can-
dles” regardless of the proportion of petroleum wax.
Second Sunset Review at 7. The ITC then redefined the
domestic like product “to include all blended candles,” or
more simply, candles “containing any amount of petro-
leum wax.” Id. at 9. No party challenged the Second
Sunset Review.
Subsequently, Commerce completed the anticircum-
vention inquiry and determined that mixed-wax candles
containing “any amount” of petroleum wax were within
the scope of the Candles Antidumping Order. Petroleum
Wax Candles from the People’s Republic of China, 71 Fed.
Reg. 59,075, 59,077-78 (Oct. 6, 2006) (“Final Determina-
tion”).
Specifically, Commerce ruled that it was appropriate
to apply a “commercial availability” test for determining
whether merchandise is “later-developed” within the
meaning of 19 U.S.C. § 1677j(d). Furthermore, Commerce
proposed an additional requirement that later-developed
merchandise must have resulted from a significant tech-
7 TARGET CORP v. US
nological advancement or significant alteration to an
earlier product. In addition, Commerce found that it
could not “definitively conclude” that mixed-wax candles
were commercially available at the time of the investiga-
tion. Commerce also determined that mixed-wax candles
should be within the scope of the antidumping order,
based upon its findings that petroleum and mixed-wax
candles are similar when applying the Diversified Prod-
ucts criteria set forth in 19 U.S.C. § 1677j(d)(1) 1 , including
the general physical characteristics, the expectations of
the ultimate purchasers, the ultimate use of the products,
the channels of trade of the products, and the advertising
and display of the products.
Plaintiffs 2 , including Appellants Nantucket Distribut-
ing Co., Inc. and Specialty Merchandise Corporation, Inc.
(collectively, “Nantucket”), challenged Commerce’s deter-
mination. The Court of International Trade affirmed in
part and remanded in part Commerce’s determination.
Target Corp. v. United States, 578 F. Supp. 2d 1369
(Ct. Int’l Trade 2008) (“Target I”).
The Court of International Trade found that Com-
merce’s commercial availability test was based upon a
1 These criteria are commonly referred to as the Di-
versified Products criteria, as they derive from the Court
of International Trade’s decision in Diversified Products
Corp. v. United States, 572 F. Supp. 883, 889 (Ct. Int’l
Trade 1983).
2 Plaintiffs in the original petition were Target
Corporation, Qingdao Kingking Applied Chemistry Co.,
Ltd., Dalian Talent Gift Co., Ltd., Shanghai Autumn
Light Enterprise Co., Ltd., Zhongshan Zhongnam Candle
Manufacturer Co., Ltd., Amstar Business Co., Ltd., Jianx-
ing Moonlight Candle Art Co., Ltd., Specialty Merchan-
dise Corporation and Shonfeld’s (USA), Inc., Nantucket
Distributing Co., Inc., and Specialty Merchandise Corpo-
ration.
TARGET CORP v. US 8
reasonable interpretation of the statute. Id. at 1375. The
Court of International Trade, however, remanded the case
to Commerce with respect to two issues. First, the court
concluded that language in Commerce’s final anticircum-
vention determination, that it could not “definitively
conclude” that mixed-wax candles were commercially
available at the time of the antidumping investigation,
caused confusion which prevented the court from appro-
priately reviewing Commerce’s finding for substantial
evidence. Id. at 1376. The Court of International Trade
directed Commerce to either (a) make a straightforward
finding of commercial unavailability or (b) explain how a
“definitive conclusiveness” standard is a reasonable
interpretation of the statute. Id. Second, the Court of
International Trade found that Commerce’s requirement
that later-developed merchandise in every instance must
entail a significant alteration or significant technological
advance of subject merchandise was not in accordance
with the statute, and the court ordered Commerce to
reconsider this aspect of its interpretation of the statute.
Id. at 1376-78.
Upon remand, Commerce made a straightforward
finding of commercial unavailability at the time of the
antidumping investigation based upon record evidence.
See Final Results Pursuant to Court Remand (Nov. 10,
2008) (“Second Remand Determination”). Commerce also
found that later-developed merchandise does not in every
instance entail a significant alteration or technological
advance of the subject merchandise. Instead, Commerce
found that an evolution of wax-mixing technology in the
1990s facilitated the appearance in the market of mixed-
wax candles in 1999 at the earliest, well after the anti-
dumping investigation.
The Court of International Trade sustained Com-
merce’s determination of commercial unavailability at the
9 TARGET CORP v. US
time of the antidumping investigation. Target II, 626 F.
Supp. 2d at 1287. The court also held that substantial
evidence supported Commerce’s determination, unchal-
lenged in Nantucket’s appeal to this court, that mixed-
wax candles constitute the same class or kind of mer-
chandise based upon consideration of the Diversified
Products criteria. Id. at 1295-1300.
Nantucket now appeals the Court of International
Trade’s decision to this court. This court has jurisdiction
to review the Court of International Trade’s final decision
under 28 U.S.C. § 1295(a)(5).
DISCUSSION
In reviewing judgments from the Court of Interna-
tional Trade in antidumping proceedings, this court
reapplies the “substantial evidence” standard prescribed
at 19 U.S.C. § 1516a(b)(1)(B)(i) to the underlying Com-
merce decision. Atl. Sugar, Ltd. v. United States, 744 F.
2d 1556, 1559 n.10 (Fed. Cir. 1984); see also Tung Mung
Dev. Co. v. United States, 354 F.3d 1371, 1378 (Fed. Cir.
2004). Commerce’s determination should be sustained
unless it is “‘unsupported by substantial evidence on the
record, or otherwise not in accordance with law.’” Corus
Staal BV v. Dep’t of Commerce, 395 F.3d 1343, 1346 (Fed.
Cir. 2005) (quoting 19 U.S.C. § 1516a(b)(1)(B)(i)). We
affirm Commerce’s determination if it is supported by
substantial evidence on the “record as a whole, including
that which ‘fairly detracts from its weight.’” Nippon Steel
Corp. v. United States, 458 F.3d 1345, 1351 (Fed. Cir.
2006).
I.
A critical legal issue in this case is whether mixed-
wax candles are “later-developed merchandise.” The
TARGET CORP v. US 10
parties debate what “later-developed” means as used in
the anticircumvention statute.
Before Commerce and the trial court, Nantucket con-
tended that the plain meaning of “later-developed” mer-
chandise is merchandise that did not “exist” at the time of
an antidumping investigation. On appeal, Nantucket
continues to primarily define “later-developed” in terms of
existence, but also suggests a slightly different “actually
useable or available” test. Nantucket alleges that because
mixed-wax candles existed at the time of the initiation of
the investigation, they cannot be considered “later-
developed” merchandise.
By contrast, Commerce derived a commercial avail-
ability standard for the term “later-developed” from its
prior administrative precedents. 3 Based on these prior
precedents, Commerce defined commercial availability as
covering products either present in the commercial mar-
ket or fully developed, i.e., tested and ready for commer-
cial production, but not yet in the commercial market.
Judicial review of Commerce’s statutory interpreta-
tion is governed by the two-step framework set forth in
Chevron, U.S.A., Inc. v. Natural Resources Defense Coun-
cil, Inc., 467 U.S. 837, 842-45 (1984). See DuPont Teijin
Films USA, LP v. United States, 407 F.3d 1211 (Fed. Cir.
3 For example, in each of Portable Electronic Type-
writers from Japan, 55 Fed. Reg. 47,358 (Nov. 13, 1990)
(final scope ruling), Electrolytic Manganese Dioxide from
Japan, 57 Fed. Reg. 395 (Jan. 6, 1992) (final scope ruling),
and Erasable Programmable Read Only Memories from
Japan, 57 Fed. Reg. 11,599 (Apr. 6, 1992) (final scope
ruling), Commerce addressed the commercial availability
of the later-developed merchandise in some capacity, such
as the product’s presence in the commercial market or
whether the product was fully developed, i.e., tested and
ready for commercial production.
11 TARGET CORP v. US
2005). Pursuant to Chevron, a court must first determine
whether Congress’ intent is clear. If it is not, the court
must uphold the agency’s interpretation if it is reason-
able. DuPont Teijin Films, 407 F.3d at 1215.
Here, the language of the anticircumvention statute
does not define what constitutes later-developed mer-
chandise. Section 1677j(d)(1) provides that in determin-
ing “whether merchandise developed after an
[antidumping] investigation is initiated” is within the
scope of an outstanding antidumping duty order, Com-
merce shall consider the Diversified Products factors. 19
U.S.C. § 1677j(d)(1) (emphasis added). The statute’s
reference to “later-developed merchandise” as merchan-
dise “developed after” an antidumping investigation does
not compel a particular meaning of “later-developed.” Nor
do Commerce’s regulations governing anticircumvention
proceedings expressly define what constitutes “later-
developed” merchandise. See 19 C.F.R. § 351.225(j)
(referring back to the criteria enumerated in § 1677j(d) of
the statute).
Noting that the word “developed” has many meanings
and that it is “not a matter of giving effect to one, clear,
Congressional intent (Chevron step one),” the Court of
International Trade properly proceeded to review the
reasonableness of Commerce’s interpretation pursuant to
step two of Chevron. Target I, 578 F. Supp. 2d at 1375-
1376. To determine whether Commerce’s interpretation
is reasonable, the court may look to “the express terms of
the provisions at issue, the objective of those provisions,
and the objectives of the antidumping scheme as a whole.”
See Wheatland Tube, 495 F.3d at 1361 (citation omitted).
The Court of International Trade properly found that
Commerce’s interpretation was reasonable for several
reasons. First, the commercial availability test was
TARGET CORP v. US 12
consistent with (although not necessarily compelled by)
the definition of “developed” provided in the dictionary.
Target I, 578 F. Supp. 2d at 1375 (citing the American
Heritage Dictionary of the English Language (Houghton
Mifflin Company 4th ed. 2004)). Second, the commercial
availability of the product at issue is relevant because a
“product’s actual presence in the market at the time of the
[antidumping] investigation is a necessary predicate of its
inclusion or exclusion from the scope of an antidumping
order.” Id. (citing with approval Commerce’s explanation
for including commercial availability standard as part of
its analysis); see Issues and Decision Memorandum for the
Later-Developed Merchandise Anticircumvention Inquiry
of the Antidumping Duty Order on Petroleum Wax Can-
dles from the People’s Republic of China, A-570-504, at 23
(Sept. 29, 2006) (“Decision Memorandum”). Third, the
later-developed merchandise provision is designed to
prevent circumvention of an antidumping order by a
comparable product (as determined by the Diversified
Products analysis) to the subject merchandise. Com-
merce’s interpretation accomplishes this objective since it
reaches comparable products that emerge in the market
after imposition of the antidumping order. Target I, 578
F. Supp. 2d at 1375-76.
In sum, because the anticircumvention statute is am-
biguous, this court defers to Commerce’s reasonable
interpretation of “later-developed” as turning upon
whether the merchandise was commercially available at
the time of the antidumping investigation. See DuPont
Teijin Films, 407 F.3d at 1215 (holding that where Con-
gressional intent is not clear, Commerce’s interpretation
must be upheld so long as it is reasonable, even if it is
“not the only or even preferred reasonable interpreta-
tion”).
13 TARGET CORP v. US
II.
Nantucket also challenges the Court of International
Trade’s finding that substantial evidence supports Com-
merce’s determination that mixed-wax candles were not
commercially available in the market at the time of the
original investigation. See Target II, 626 F. Supp. 2d at
1298. As discussed below, the Court of International
Trade properly weighed the voluminous evidence submit-
ted by NCA against the documents that plaintiffs relied
on as purportedly showing mixed-wax candles were
commercially available. Id. at 1290-91.
NCA has submitted evidence that mixed-wax candles
were not commercially available at the time of the anti-
dumping investigation, including hundreds of pages of
brochures, price lists, and marketing materials dating
back to 1986, in which none of the companies identified
offered mixed-wax candles at the time of the investiga-
tion; a comprehensive advertising survey of over 2,200
product catalogues from 1985 to 2004 demonstrating that
mixed-wax candles were not available in 1985 or 1986;
affidavits and testimony of long-standing industry mem-
bers, stating that at the time of the investigation in 1985-
86, they were not producing mixed-wax candles and
mixed-wax candles were not commercially available;
independent marketing studies showing that mixed-wax
candles did not appear in the market until the early
2000s; and sales data submitted by NCA members estab-
lishing that the earliest a party sold any mixed-wax
candle was in 1999.
To support its argument that mixed-wax candles were
commercially available at the time of the investigation,
Nantucket refers to the ITC Final Report, thirty or so pre-
investigation patents, a 1906 Lamborn Manual, a 1921
Will & Baumer product catalogue, a Financial Times
TARGET CORP v. US 14
article and a 1961 Union Oil pamphlet. As the Court of
International Trade found, Commerce did not ignore this
evidence. Target II, 626 F. Supp. 2d. at 1291-92. Rather,
it weighed all the evidence, considered Nantucket’s argu-
ments, and ultimately found that mixed-wax candles were
not available in the market at the time of the LTFV
investigation. Id.
Nantucket argues that the statement in ITC Final
Report that “specialty candle making operations do have
requirements for the more ‘exotic’ types of wax, such as
hydrogenated vegetable oil or jojoba” purportedly recog-
nized the existence of vegetable waxes. As the Court of
International Trade noted, however, the ITC’s Second
Sunset Review indicates that the ITC Final Report did not
“specifically state whether those candles contained 100
percent vegetable wax or some combination of waxes.”
Second Sunset Review at 6 n.29. The ITC in the Second
Sunset Review further clarified that there was no com-
mercial production of mixed-wax candles in 1986 when
the ITC made its original determination and that it
therefore did not address mixed-wax candles in its origi-
nal LTFV report. Second Sunset Review at 7. Thus, the
clarification issued by the ITC as part of its Second Sun-
set Review analysis is corroborative evidence that
mixed-wax candles were not available at the time of the
LTFV investigation.
With respect to the Lamborn Manual and the Will &
Baumer product catalogue, Commerce noted that neither
references mixed-wax candles. Instead they either refer
to candles containing stearic acid, which is not a vegeta-
ble-based wax, or they refer to composite candles but do
not indicate what these composite candles contain. Deci-
sion Memorandum at 24-25. Similarly, the article from
the Financial Times discusses vegetable oil, not wax.
Decision Memorandum at 24-25.
15 TARGET CORP v. US
Nantucket also referred to a 1961 Union Oil pam-
phlet, which noted that the most common types of wax
used in making candles were “paraffin, stearic acid (also
known as Stearin), beeswax, cerasin, carnauba and cande-
lilla waxes.” Questioning the relevance of that reference,
NCA asserts that “Stearic acid, carnauba and Japanese
wax are not vegetable waxes, and adding them to petro-
leum wax does not make a mixed-wax candle.” But NCA
has not cited to any authority to support its contention
that carnauba is not a wax. The same Union Oil pam-
phlet, however, noted that “[w]hen used, the proportions
of [Ceresin, carnauba and candelilla waxes] usually vary
from 1% to 5%.” Since only mixed-wax candles composed
of petroleum wax combined with 50% or more vegetable
wax were the subject of Commerce’s anticircumvention
inquiry, the reference to the use of carnauba does not
constitute substantial evidence regarding the commercial
availability of mixed-wax candles that were the subject of
Commerce’s inquiry.
Furthermore, the Court of International Trade noted
that Commerce did not ignore the pre-investigation
patents, which Nantucket also relies upon in this appeal.
Target II, 626 F. Supp. 2d at 1292-93. The Court of
International Trade held that Commerce reasonably
found this evidence unpersuasive on the ground that most
of the thirty or so pre-investigation patents are not ad-
dressed to candle wax. Id. at 1293. Some of the patents
concern novel wicks and wick systems that may be used
with any conventional candle. Others involve novel
decorative features, most of which are simply applied to
an existing conventional candle, or incorporated into a
conventional wax, and yet others relate to candle body
production techniques or preparation methods using
conventional waxes. Id. Moreover, there was no evidence
TARGET CORP v. US 16
linking any of these patents with the commercial appear-
ance of mixed-wax candles in the marketplace. Id.
By contrast, Commerce noted that it was not until the
late 1990s that a series of patented technological ad-
vancements in wax technology resulted in a mixed wax
that could actually be used to produce the candles that
were the subject of Commerce’s inquiry. More impor-
tantly, Commerce noted that direct evidence linked these
post-investigation patents with the appearance of mixed-
wax candles in the marketplace in the late 1990s. This
evidence consists of press releases issued by a large wax
producer, Cargill, publicizing its acquisition of the rights
to the technology enabling the production of mixed-wax
candles from wax compositions developed by Dr. Bernard
Tao; a multi-million dollar lawsuit filed on October 10,
2003 by Candle Corporation of America over the right to
the new technology in the Tao patents; and affidavits by
U.S. candle producers describing the production of mixed-
wax candles and referencing specific patents filed after
the investigation. See Second Sunset Review at 34-36. As
Commerce properly found, the timing of these new pat-
ents and their link to the appearance of mixed-wax can-
dles in the marketplace are both persuasive.
Therefore, given the extensive evidence that Com-
merce cited in its determination that mixed-wax candles
were not commercially available in the market at the time
of the LTFV investigation, we affirm Commerce’s deter-
mination because it is supported by substantial evidence
under 19 U.S.C. § 1516a(b)(1)(B)(i).
III.
A.
Nantucket also argues that even if Commerce was
correct that mixed-wax candles constitute later-developed
17 TARGET CORP v. US
merchandise, Commerce is not permitted to find that
mixed-wax candles are within the scope of the Candles
Antidumping Order because such an anticircumvention
inquiry is contrary to this court’s precedents and the prior
mixed-wax candle scope rulings. Alternatively, Nan-
tucket contends that mixed-wax candles cannot be in-
cluded within the Candles Antidumping Order because
they were intentionally and expressly excluded from the
Candles Antidumping Order at the time of the antidump-
ing investigation. Both arguments are unavailing.
Contrary to Nantucket’s first argument, this court’s
precedents do not preclude Commerce from finding that
mixed-wax candles should be within the scope of the
antidumping order as later-developed merchandise; nor
was Commerce precluded by its earlier conventional scope
rulings that had previously found mixed-wax candles not
within the scope of the antidumping order.
Relying primarily on Wheatland Tube, Nantucket ap-
pears to contend that Commerce may not find merchan-
dise within the scope of an antidumping order based upon
circumvention unless the scope of an antidumping order is
ambiguous. This court, however, expressly rejected this
argument in Wheatland Tube. The court recognized that
merchandise that might otherwise fall outside the literal
scope of the order may be included within the scope pur-
suant to the minor alterations provision. See Wheatland
Tube, 161 F.3d at 1371 (analogizing to patent cases in
which “[a]n accused product outside the literal language of
a patent claim nevertheless infringes . . . .”) (citations
omitted, emphasis added). This court further made clear
in Nippon that the broad language from Wheatland Tube
“must be interpreted in light of the issue before the court.”
Nippon, 219 F.3d at 1356. In particular, the statement in
Wheatland Tube, that the minor alteration provision
“does not . . . apply to products unequivocally excluded
TARGET CORP v. US 18
from the order in the first place,” was made “in determin-
ing the propriety of Commerce’s conducting a scope rather
than a minor alternations inquiry.” Nippon, 219 F.3d at
1356 (internal quotation marks omitted).
Likewise, Nantucket’s reliance on cases addressing
conventional scope inquiries, such as Smith Corona Corp.
v. United States, 915 F.2d 683, 685 (Fed. Cir. 1990) and
Floral Trade Council v. United States, 717 F. Supp. 1580
(Ct. Int’l Trade 1989), is misplaced. Conventional scope
inquiries are different from anticircumvention inquiries
because they are separate proceedings and address sepa-
rate issues. See Target I, 578 F. Supp. 2d at 1379-80;
compare also 19 C.F.R. § 351.225(j) (later-developed
merchandise) with 19 C.F.R. § 351.225(k) (describing
procedures for scope determinations other than anticir-
cumvention inquiries under paragraphs (g) through (j) of
§ 351.225). Although Commerce recognized that it previ-
ously made scope rulings finding certain mixed-wax
candles outside the antidumping order’s scope, it did so
using an analysis guided by section 351.225(k)(1), rather
than 19 U.S.C. § 1677j(d). See Target I, 578 F. Supp. 2d
at 1379-80.
B.
To the extent that Nantucket contends in the alterna-
tive that mixed-wax candles cannot be within the scope of
the antidumping order because Commerce intentionally
and unequivocally excluded mixed-wax candles from the
antidumping order, Nantucket is incorrect.
The kind or class of merchandise encompassed by a
final antidumping order is determined by the order.
Smith Corona Corp., 915 F.2d at 685. The Candles Anti-
dumping Order itself is silent as to mixed-wax candles
and does not define petroleum wax candles as having a
specific percentage of petroleum wax. Rather, it merely
19 TARGET CORP v. US
defines the “subject merchandise” as “certain scented or
unscented petroleum wax candles from petroleum wax and
having fiber or paper-color wicks.” Candles Antidumping
Order at 39,686 (emphasis added). Thus, the Candles
Antidumping Order did not clearly and unambiguously
exclude mixed-wax candles. Indeed, as later-developed
merchandise was not present in the market at the time of
the LTFV investigation the Candles Antidumping Order
could not have addressed mixed-wax candles.
Nantucket argues that the ITC originally defined the
domestic like product as candles “composed of over 50
percent petroleum wax,” which provides evidence of intent
to exclude mixed-wax candles from the scope of the Can-
dles Antidumping Order. The ITC, however, changed the
like product definition during the Second Sunset Review
to include candles “containing any amount of petroleum
wax.” Second Sunset Review at 9. The ITC clarified that
at the time of the injury investigation, mixed-wax candles
did not exist in the commercial market. The ITC there-
fore found that mixed-wax candles were not considered
during the investigation. The ITC also specifically found
that “during the original investigation, the candles that
were not pure petroleum wax were combined with bees-
wax.” Second Sunset Review at 6. Given the subsequent
clarification in the ITC’s Second Sunset Review, mixed-
wax candles were neither considered nor excluded from
the domestic like product by the ITC in the original
investigation.
Significantly, as the Court of International Trade
noted, “no one challenged the Second Sunset Review.”
Target I, 578 F. Supp. 2d at 1381. That decision thus is
final and conclusive as well as the domestic like product
definition that it contains and the court may not entertain
a collateral attack to the Second Sunset Review within
this proceeding. See 19 U.S.C. § 1516a(a)(2)(A) (providing
TARGET CORP v. US 20
certain jurisdictional predicates for judicial review in
countervailing duty and antidumping duty proceedings).
Therefore, as the domestic like product now covers can-
dles “containing any amount of petroleum wax,” Com-
merce’s inclusion of mixed-wax candles within the scope of
the Candles Antidumping Order does not impermissibly
expand the scope of the Candles Antidumping Order
contrary to the domestic like product definition.
CONCLUSION
Because Commerce’s decision that mixed-wax candles
are later-developed merchandise covered by the anti-
dumping duty order on petroleum candles from China was
supported by substantial evidence and in accordance with
law, we affirm the decision of the Court of International
Trade.
AFFIRMED