San Francisco Candle Co., Inc. v. United States

Slip Op. 02-47

United States Court of International Trade

SAN FRANCISCO CANDLE COMPANY, INC.,

Plaintiff,
Before: Pogue, Judge
v.
Court No. 01-00088
UNITED STATES,

Defendant,

and

NATIONAL CANDLE ASSOCIATION,

Defendant-Intervenor.

[Plaintiff’s motion for judgment on the agency record denied.
Remanded to the Department of Commerce for further proceedings
consistent with this opinion.]

Decided: May 30, 2002

Sandler, Travis, & Rosenberg, P.A. (Philip S. Gallas, Gregory S.
Menegaz) for Plaintiff.

Robert D. McCallum, Jr., Assistant Attorney General, David M.
Cohen, Director, Reginald T. Blades, Jr., Senior Trial Counsel,
Commercial Litigation Branch, Civil Division, U.S. Department of
Justice, John F. Koeppen, Of Counsel, Office of the Chief Counsel
for Import Administration, U.S. Department of Commerce, for
Defendant.

Barnes & Thornburg (Randolph J. Stayin, Karen A. McGee) for
Defendant-Intervenor.

OPINION

Pogue, Judge: Plaintiff San Francisco Candle Company (“SFCC”) moves

for judgment upon the agency record pursuant to USCIT Rule 56.2,
Court No. 01-00088 Page 2

challenging a determination by the U.S. Department of Commerce

("Commerce") that certain candles are within the scope of an

antidumping duty order. This Court has jurisdiction under 28

U.S.C. § 1581(c) (2000) and 19 U.S.C. § 1516a(a)(2)(B)(vi) (2000).

Background

In August 1986, Commerce issued an antidumping duty order

covering “[c]ertain scented or unscented petroleum wax candles made

from petroleum wax and having fiber or paper-cored wicks . . . sold

in the following shapes: tapers, spirals, and straight-sided 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 Fed. Reg. 30,686, 30,686 (Dep't

Commerce 1986) (“Candles Order” or “Order”). A subsequent notice

indicated that certain novelty candles would be excluded from the

Order’s scope:

The Department of Commerce has determined that certain
novelty candles, such as Christmas novelty candles, are
not within the scope of the antidumping order on
petroleum wax candles from the People’s Republic of China
(PRC). Christmas novelty candles are specially designed
for use only in connection with the Christmas holiday
season. This use is clearly indicated by Christmas
scenes or 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).

Dep’t of Commerce, Scope Clarification Notice, Petroleum-Wax
Court No. 01-00088 Page 3

Candles from the People’s Republic of China - Case Number A-570-

504, Pl.’s Ex. 4 at 1 (“Scope Clarification”); Customs Info. Exch.

Notification, Petroleum Wax Candles from the People’s Republic of

China - Antidumping - A-570-504, CIE N–212/85 (Sept. 21, 1987).

In November 2000, SFCC requested that Commerce issue a scope

ruling as to twelve candles.1 See Letter from San Francisco Candle

Company to Sean Carey, Dep’t of Commerce, Int’l Trade Admin.,

Antidumping and Countervailing Enforcement Group III (Nov. 17,

2000), Compl. App. I (“Scope Ruling Request”). Commerce found

eleven of the twelve candles to be within the scope of the Candles

Order.2 See Final Scope Ruling; Antidumping Duty Order on

1
SFCC submitted the following twelve candles for review in its
Scope Ruling Request:

1. Christmas Holly Leaf with Berries Candy Cane Pillar (Item
No. 03433)
2. Santa Claus Motif Candy Cane Pillar (Item. No. 13403)
3. Christmas Tree with Star Candy Cane Pillar (Item. No. 73633)
4. Christmas Holly Leaf Pillar (Item No. 83136)
5. Christmas Sock Pillar (Item No. 83036)
6. Santa Claus Pillar (Item No. 82936)
7. Carved Christmas Tree with Star Pillar (Item No. 64904)
8. Santa Claus Candy Cane Column (Item No. 00016)
9. Christmas Holly Leaf with Berries Candy Cane Column (Item
No. 00016)
10. Christmas Tree with Star Candy Cane Column (Item No. 00016)
11. Christmas Holly Leaf with Berries Pillar (Item No. 166406)
12. Christmas Patchwork Pillar and Christmas Patchwork Square
(Item No. 15736)

The opinion will refer to the candles by the assigned numbers 1-
12.
2
Commerce found Candle 7, the Carved Christmas Tree with Star
Pillar (Item No. 64904), to be outside the scope of the Order.
This is a white candle decorated with gold images of Christmas
Court No. 01-00088 Page 4

Petroleum Wax Candles from the People’s Republic of China, (A-570-

504); SFCC at 4-7 (Feb. 12, 2001) (“Final Scope Ruling”), Compl.

App. III.

SFCC appeals the results of the Final Scope Ruling pursuant

to 28 U.S.C. § 1581(c), claiming that all of the candles submitted

in the Scope Ruling Request are novelty candles that fall outside

the scope of the Candles Order. SFCC also submits for review the

Christmas Patchwork Square, which Commerce did not address in its

Final Scope Ruling,3 and two candles that were not presented to

Commerce in the Scope Ruling Request.4 See Pl.’s Mem. Supp. Mot.

J. Agency R. at 32 (“Pl.’s Mem.”); Scope Ruling Request, Compl.

App. I. Defendant asserts that candles 2, 3, 5, 6, 8, and 10 were

correctly found to be within the scope of the Candles Order, and

requests that candles 1, 4, 9, 11, and 12 be remanded for

reconsideration by Commerce. See Def.’s Resp. Pl.’s Mot. J. Agency

trees. Commerce held that the image is clearly identifiable as a
Christmas tree, which is specific to the Christmas holiday; that
the design is viewable from most angles; and that its removal
would cause significant damage to the candle. This candle is not
at issue here.
3
The twelfth candle listed in the Scope Ruling Request is a
Christmas Patchwork design available as a 3 in. x 6 in. pillar
and a 3 in. x 3 in. cube. In its Final Scope Ruling, Commerce
addressed the Christmas Patchwork Pillar but made no
determination as to the Christmas Patchwork Square. See Scope
Ruling Request, Compl. App. I ¶ 12; Final Scope Ruling at 7,
Compl. App. III.
4
These are the Moonlite Candy Cane candles (Item No. 213649),
available in two color combinations: red, white, and green, or
red and white.
Court No. 01-00088 Page 5

R. at 2-3 (“Def.’s Resp.”).

Standard of Review

This Court will uphold an agency determination unless it is

“unsupported by substantial evidence on the record or otherwise not

in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(I) (2000).

Substantial evidence is “something less than the weight of the

evidence,” Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966),

but is “more than a mere scintilla. It means such relevant

evidence as a reasonable mind might accept as adequate to support

a conclusion.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 477

(1951) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229

(1938)). The possibility of drawing two inconsistent conclusions

from the same evidence does not mean that the agency’s finding is

unsupported by substantial evidence, see Consolo, 383 U.S. at 620,

and this court “may not substitute its judgment for that of the

[agency] when the choice is ‘between two fairly conflicting views,

even though the court would justifiably have made a different

choice had the matter been before it de novo.’” Timken Co. v.

United States, slip op. 02-38 at 5-6 (CIT Apr. 22, 2002) (internal

citations omitted).

Discussion

I. Scope Determinations

Commerce has inherent authority to define and clarify the

scope of an antidumping duty investigation. See Koyo Seiko Co.,
Court No. 01-00088 Page 6

Ltd. v. United States, 17 CIT 1076, 1078, 834 F. Supp. 1401, 1403

(1993), aff’d, 31 F.3d 1177 (Fed. Cir. 1994). However, “while

[Commerce] may interpret those orders, it may not change them.”

Ericsson GE Mobile Communication, Inc. v. United States, 60 F.3d

778, 782 (Fed. Cir. 1995) (citing Smith Corona Corp. v. United

States, 915 F.2d 683, 686 (Fed. Cir. 1990)).

In determining whether a product falls within the scope of an

order, Commerce looks to “[t]he descriptions of the merchandise

contained in the petition, the initial investigation, and the

determinations of the Secretary (including prior scope

determinations) and the Commission.” 19 C.F.R. § 351.225(k)(1)

(2000). If the descriptions are dispositive, Commerce must issue

the scope ruling based on this information alone. See id. at §

351.225(k)(2); Nitta Indus. Corp. v. United States, 997 F.2d 1459,

1461 (Fed. Cir. 1993).5

II. The Candles Order

5
If a determination cannot be made using only the descriptions,
Commerce initiates a scope inquiry and considers the following
five factors: “(i) [t]he physical characteristics of the product;
(ii) [t]he expectations of the ultimate purchasers; (iii) [t]he
ultimate use of the product; (iv) [t]he channels of trade in
which the product is sold; and (v) [t]he manner in which the
product is advertised and displayed.” 19 C.F.R. § 351.225(k)(2);
see also Diversified Prods. Corp. v. United States, 6 CIT 155,
162, 572 F. Supp. 883, 889 (1983). In the instant case, the
criteria of 19 C.F.R. § 351.225(k)(1) are dispositive. As
Commerce concluded, no consideration of the criteria 19 C.F.R. §
351.225(k)(2) was required.
Court No. 01-00088 Page 7

In making a scope determination under the Candles Order,

Commerce first determines whether the candle is in a shape covered

by the Order. If so, Commerce then considers whether the candle

may be excluded from the Order as a novelty candle.6 Among the

excluded novelty candles are holiday candles, including Christmas

candles.

In analyzing holiday novelty candles, including Christmas

candles, Commerce asks whether the candle is specially designed for

use only in connection with a specific holiday or event. Under the

Scope Clarification, Christmas candles must be “specially designed

for use only in connection with the Christmas holiday season,” and

this use must be “clearly indicated by Christmas scenes or symbols

depicted in the candle design.” Scope Clarification, Pl.’s Ex. 4

at 1. Prior scope rulings indicate that in order to qualify a

candle for exclusion, a holiday design must be easily recognizable

as a specific holiday image.

6
As noted earlier, the Candles Order excludes the following as
novelty candles:
a) “Christmas novelty candles . . . specially designed for
use only in connection with the Christmas holiday
season. This use is clearly indicated by Christmas
scenes or symbols depicted in the candle design;”
b) “Candles having scenes or symbols of other occasions
(e.g., religious holidays or special events) depicted
in their designs;”
c) “Figurine candles;” and
d) “Candles shaped in the form of identifiable objects,
(e.g. animals or numerals).”

Scope Clarification, Pl.’s Ex. 4 at 1.
Court No. 01-00088 Page 8

If a candle is found to be specially designed for use only in

connection with a specific holiday or event, Commerce then

determines whether the decorations can be removed without damaging

the candle. See Final Scope Ruling, Endar Corp. at 4 (July 7,

2000) (explaining Commerce’s three-step analysis of holiday novelty

candles); see also Final Scope Ruling, Am. Greetings Corp. at 6

(May 4, 2000) (stating that Commerce will analyze whether a

decoration may be easily removed only after first determining that

the candle qualifies as a holiday novelty candle); Final Scope

Ruling, Hallmark Cards, Inc. at 2 (Sept. 30, 1993) (finding a

candle outside the scope of the Order because an engraved poem

entitled “Our Wedding” limited its use to weddings and could not be

removed without damaging the candle). If a candle’s design is

specific to a particular holiday or event but is not easily

recognizable or is easily removed without damaging the candle,

Commerce may still find the candle to be within the scope of the

Order.

The holiday novelty exclusion is defined narrowly. See Russ

Berrie & Co., Inc. v. United States, 23 CIT 429, 440, 57 F. Supp.

2d 1184, 1194 (1999); Final Scope Ruling, Endar Corp. at 5 (July 7,

2000). Decorative images must be specific to the holiday; generic

and seasonal designs are not grounds for exclusion. See, e.g.,

Final Scope Ruling, Endar Corp. at 4 (July 7, 2000) (“Candles

bearing designs or symbols of a general seasonal nature, for
Court No. 01-00088 Page 9

example, have not warranted exclusion as holiday novelty

candles.”); Final Scope Ruling, Am. Greetings Corp. at 8 (May 4,

2000) (candles decorated with snowflakes are seasonal and therefore

do not qualify as holiday novelty candles); Final Scope Ruling,

Kohl’s Dep’t Stores, Inc., Def.-Int.’s Ex. 14 at 4 (Aug. 24, 1998)

(candle decorated with cherubs, rope, flowers, and vines was within

the scope of the Order because these decorations did not symbolize

any particular holiday). Nor will colors alone qualify a candle

for exclusion. See, e.g., Springwater Cookie & Confections, Inc.

v. United States, 20 CIT 1192, 1197 (1996) (“[C]olors per se will

not exempt a candle from the scope of the antidumping order.”);

Final Scope Ruling, Institutional Financing Services and Hallmark

Cards, Inc., Def.-Int.’s Ex. 12 at 3-4 (Apr. 9, 1997) (red and

white rounds resembling a peppermint candy were within the scope of

the Order). However, Commerce considers all of the characteristics

of the candle in combination, and colors and designs that may be

insufficient bases for exclusion when considered individually may

qualify a candle for exclusion when considered together. See,

e.g., Springwater, 20 CIT at 1195-96; Final Scope Ruling, Endar

Corp., Def.-Int.’s Ex. 9 at 4 (Apr. 7, 1999) (“[B]ecause the design

and color combination of this candle (pine cones bunched in the

center of green pine branches against a red background) is

associated with Christmas, we find that [this candle] qualifies for

the holiday novelty candle exclusion.”); see also Final Scope
Court No. 01-00088 Page 10

Ruling, Success Sales, Inc., Pl.’s Ex. 6 at 3-5 (July 27, 1994) (A

packaged set of three candles was found to be a holiday novelty

item where two of the three candles were holiday novelty candles,

the packaging was labeled “Holiday Pillar Candles,” and the set was

marketed during the Christmas season); Final Scope Ruling,

Cherrydale Farms Confections at 2-4 (Sept. 9, 1993) (A packaged set

of two candles was found to be an excluded holiday novelty item

where the candles used bayberry scent and red coloring, one candle

was a holiday novelty candle, the non-novelty candle depicted a

winter scene, and the packaging was labeled “Holiday Candles.”).

III. The Scope Ruling

A. Defendant’s Remand Request

As a preliminary matter, the Court notes Defendant’s request

for the remand of candles 1, 4, 9, 11, and 12 to the Department of

Commerce for reconsideration.7 See Def.’s Resp. at 3. The

7
The following candles are included in Defendant’s remand
request:
1. Christmas Holly Leaf Candle with Berries Candy Cane Pillar
(Item No. 03433)
This candle has red and white diagonal stripes on its sides
and a holly leaf and berry design imprinted into its flat top
surface. Commerce found this candle to be within the scope of
the Order, maintaining that (a) the holly leaf and berry pattern
is “generic to the winter season” and is not specific to
Christmas; (b) the design on the top surface would quickly melt;
and (c) red and white striped “candy cane” candles are not
eligible for the holiday novelty exception (citing Final Scope
Ruling, Institutional Financing Services and Hallmark Cards,
Def.-Int.’s Ex. 12 at 4 (Apr. 9, 1997)). Final Scope Ruling at 4
¶ 1, Compl. App. III.
Court No. 01-00088 Page 11

decorative patterns on these candles include holly leaf and berry

designs that Commerce determined to be “generic to the winter

season” and therefore ineligible for exclusion from the Candles

Order as holiday novelty candles. See Final Scope Ruling at 4-7 ¶¶

1, 4, 9, 11, 12, Compl. App. III. This determination is contrary

to Springwater, 20 CIT at 1195-96, which stated that holly sprigs

are “symbols associated with Christmas,” and to Candles Order

rulings in which Commerce, following Springwater, concluded that

4. Christmas Holly Leaf Pillar (Item No. 83136)
This dark green candle has a holly leaf and berry design
drawn in white on one side. Commerce found this candle to be
within the scope of the Candles Order, ruling that the holly leaf
and berry design is “generic to the winter season” and “does not
meet the specificity requirements to render a particular candle
exempt under of the holiday novelty exemption.” Id. at 5 ¶ 4.

9. Christmas Holly Leaf with Berries Candy Cane Column (Item No.
00016)
This candle is decorated with red, white and green diagonal
stripes along its length and a small holly leaf and berry image
on one side. Commerce ruled that this candle was within the
scope of the Candles Order on the sole ground that the holly leaf
and berry motif is not specific to Christmas. Id. at 6 ¶ 9.

11. Christmas Holly Leaf with Berries Pillar (Item No. 166406)
The body of this red candle is covered with a raised holly
leaf and berry design. Commerce found this candle to be within
the scope of the Order on the ground that the holly leaf and
berry design is “generic to the winter season” and not specific
to the Christmas holiday. Id. at 6 ¶ 11.

12. Christmas Patchwork Pillar (Item No. 15736)
This candle is decorated with a variety of small images,
including holly leaves and berries, candy canes, evergreen trees,
snow-covered houses, cardinals, stars, reindeer, and multicolored
patchwork designs. Commerce ruled that none of the images were
“solely specific to the Christmas holiday” and found the candle
to be within the scope of the Order. Id. at 7 ¶ 12.
Court No. 01-00088 Page 12

the holly leaf and berry design is a symbol of Christmas that

qualifies a candle for the holiday novelty exception. See Final

Scope Ruling, Avon Products, Inc., Def.-Int.’s Ex. 6 at 4 (May 8,

2001); Final Scope Ruling, Dollar Tree Stores, Inc. at 2-3 (Apr. 9,

1997).

Although Commerce is authorized to alter its prior practice,

it must demonstrate that a decision to do so is supported by

substantial evidence and in accordance with law. See Asociacion

Colombiana de Exportadores de Flores v. United States, 22 CIT 173,

184-85, 6 F. Supp. 2d 865, 879-80 (1998) (“Commerce has the

flexibility to change its position providing that it explain the

basis for its change and providing that the explanation is in

accordance with law and supported by substantial evidence.”).

Therefore, the Court will grant the defendant’s request and remand

candles 1, 4, 9, 11, and 12 to Commerce for reconsideration. The

Court further directs Commerce to consider both the cube and pillar

versions of candle 12, the Christmas Patchwork candle, in its

remand determination.

B. SFCC’s Moonlite Candles

Plaintiff includes in its motion two Moonlite Candles (Item

No. 213649) that were not submitted to Commerce in the Scope Ruling

Request. See Compl. at 8 ¶ 31; Scope Ruling Request, Compl. App.

I; Pl.’s Mem. at 32. Absent an agency determination, there is no

basis for this Court to exercise jurisdiction in this matter. See
Court No. 01-00088 Page 13

19 U.S.C. § 1516a(a)(2)(B)(vi); Ericsson GE Mobile Comm., Inc., 60

F.3d at 783 (“As the agency charged with administering the

antidumping duty program, the Commerce Department is responsible

for interpreting the antidumping duty order and determining whether

certain products fall within the scope of the order as

interpreted.”). As Commerce has not had the opportunity to

determine whether these candles fall within the scope of the Order,

review in this Court is unavailable.

C. Commerce’s Determinations in the SFCC Final Scope Ruling

Candles 2, 3, 5, 6, 8, and 10 remain to be considered by the

Court. All are formed in shapes covered by the Order. Plaintiff

claims that they should be excluded from the scope of the Order as

Christmas novelty candles.

As the agency acknowledged, these candles are decorated with

Christmas-specific images, including Santa Claus, Christmas trees,

and Christmas stockings. Commerce nevertheless found the candles

to be within the scope of the Order, reasoning that: (1) designs

were not visible from most or all angles; (2) designs would quickly

burn away when the candle was lit; (3) designs were “minimally

decorative;” and (4) designs were not easily recognizable as

holiday images. See Final Scope Ruling at 5-6 ¶¶ 2, 3, 5, 6, 8,

10, Compl. App. III. The Court will address Commerce’s analysis of

each of these candles.

1. Candles 2 and 3
Court No. 01-00088 Page 14

Candle 2, the Santa Claus Motif Candy Cane Pillar (Item No.

13403), is decorated with red and white diagonal stripes on its

sides and an image of Santa Claus imprinted into the top surface.

Similarly, candle 3, the Christmas Tree with Star Candy Cane Pillar

(Item No. 73633), has red, white, and green diagonal stripes on its

sides and an image of a Christmas tree with a star imprinted into

the top surface. Commerce ruled that although the Santa Claus and

Christmas tree images are specific to Christmas, the designs are

“only discernable when viewed from above,” rather than visible from

multiple angles, and “would soon melt away once the candle is lit.”

Id. at 5 ¶¶ 2, 3. In both instances, Commerce further asserted

that “a minimally decorative design that does not make the product

easily identifiable as a novelty candle is not grounds for

excluding an item from the Order.” Id. (citing Final Scope Ruling,

Endar Corp. at 6 (Jan. 10, 2000)). The Court will consider each of

these reasons in turn.

a. The Design Is Not Visible from Multiple Angles

Whether a design may be seen from multiple angles has been a

regular feature of rulings involving candles formed in the shape of

identifiable objects. Commerce has determined that candles are

within the scope of the Order where a shape is not clearly

identifiable as that of a particular object, or is not identifiable

when viewed from multiple angles. See, e.g., Final Scope Ruling,

Meijer, Inc., Def.-Int.’s Ex. 8 at 6-7 (Sept. 30, 1999) (“Star
Court No. 01-00088 Page 15

Candle” was within the scope of the Order because it was not

clearly identifiable as a star or other object when viewed from all

sides); Final Scope Ruling, Endar Corp., Def.-Int.’s Ex. 9 at 3-4,

6 (Apr. 7, 1999) (“Gold 5" High Holiday Candle” found within the

scope of the Order because it was not clearly identifiable as a

star or other object; however, the “Christmas Star Candle” was

outside the scope of the Order because it was clearly identifiable

as a star when viewed from all sides).

Rulings addressing holiday novelty candles, however, have not

previously required that a design be visible from multiple angles.

See Final Scope Ruling, Meijer Inc. at 4 (Dec. 15, 1997) (finding

a candle embossed with the word “Noel” to be a Christmas novelty

candle without addressing the issue of visibility from multiple

angles); Final Scope Ruling, Enesco Corp. at 3 (Oct. 30. 1996)

(finding four candles decorated with raised Christmas scenes to be

outside the scope of the Order without addressing visibility of the

design); Final Scope Ruling, Watkins, Inc. at 2 (Feb. 14, 1995)

(ruling that a raised relief Christmas design “clearly limit[s]

this candle for use in connection with the Christmas holiday

season,” without addressing visibility from multiple angles); Final

Scope Ruling, Hallmark Cards, Inc. at 2 (Sept. 30, 1993) (finding

a candle engraved with a poem entitled “Our Wedding” outside the

scope of the Order because the poem limited its use to weddings and

could not be removed without damaging the candle. The design’s
Court No. 01-00088 Page 16

visibility from multiple angles was not addressed.). Commerce’s

holiday novelty analysis, explained in Final Scope Ruling, Endar

Corp. at 4 (July 7, 2000), does not address the issue of the

design’s visibility from multiple angles.

Furthermore, a requirement of visibility from multiple angles

conflicts with several earlier Candles Order rulings in which

Commerce concluded that holiday designs on the lids of wax-filled

containers qualified candles for the holiday novelty exception.

See Final Scope Ruling, Kohl’s Dep’t Stores, Inc., Def.-Int.’s Ex.

14 at 6 (Aug. 24, 1998) (ruling that a wax-filled container with a

Christmas print on the lid was a Christmas novelty candle and was

outside the scope of the Order); Final Scope Ruling, Cherrydale

Farms Confections at 3 (Sept. 3, 1993) (ruling that a wax filled

container with a print titled “Bringing Home the Christmas Tree” on

its lid was “limit[ed] . . . to use for Christmas” and was

therefore a novelty candle excluded from the scope of the Order);

Final Scope Ruling, Primark Int’l § 3 (June 9, 1993) (ruling that

a wax-filled container with an image of Santa Claus and reindeer on

the lid was a Christmas novelty candle and was excluded from the

scope of the Order). A container lid is on top of the candle and

must be removed entirely prior to use. A design on the lid is not

visible either from multiple angles or when the candle is used.

Thus, a requirement that a design be visible from multiple angles
Court No. 01-00088 Page 17

appears inconsistent with the determination that a design on top of

a container lid may exclude a candle from the scope of the Order.

In another context, Commerce has found that designs molded on

top of candles and designs that are recognizable only from the top

are not grounds for exclusion from the scope of the Order. See,

e.g., Final Scope Ruling, Cherrydale Farms at 4 (Oct. 5, 2000)

(finding that an insect shape molded on top of a candle was

insufficient to exclude it from the scope of the Order); Final

Scope Ruling, Endar Corp., Def.-Int.’s Ex. 11 at 5 (Jan. 10, 2000)

(suggesting that impression of a dragonfly, visible only from the

top, would not be sufficient to grant exclusion as a novelty

candle. The candle was nevertheless excluded because it was formed

in a shape not covered by the Order.). These rulings involved

candles formed in the shapes of identifiable objects, however, and

Commerce has not previously applied this reasoning to holiday

novelty candles. Moreover, like the requirement of visibility from

multiple angles, a determination that a holiday design on top of a

candle is an insufficient basis for exclusion also appears to

conflict with the earlier determinations that holiday designs on

the lids of wax-filled containers are sufficient grounds for

exclusion. See Final Scope Ruling, Kohl’s Dep’t Stores, Inc.,

Def.-Int.’s Ex. 14 at 6 (Aug. 24, 1998); Final Scope Ruling,

Cherrydale Farms Confections at 3 (Sept. 3, 1993); Final Scope

Ruling, Primark Int’l § 3 (June 9, 1993).
Court No. 01-00088 Page 18

An interpretation of the Scope Clarification to require a

Christmas design to be visible from multiple angles represents a

change from Commerce’s prior practice. Yet here, Commerce offered

no explanation as to why the interpretation is correct or why

Commerce altered its practice. Accordingly, the determination is

not in accordance with law.

b. The Design Would Quickly Burn or Melt Away

As noted above, Commerce based its determination partly on the

conclusion that the Santa Claus and Christmas tree designs

imprinted into the top surfaces of candles 2 and 3 would quickly

melt away when the candles were lit. See Final Scope Ruling at 5

¶¶ 2,3, Compl. App. III. Commerce has consistently ruled that a

novelty candle may still fall within the scope of the Order if the

figurine or other decoration that qualifies the candle for novelty

status may be easily removed without damaging the candle. See,

e.g., Final Scope Ruling, Meijer, Inc. at 5 (June 11, 1998) (candle

found outside the scope of the Order where an attached chick

figurine could not be removed without damaging the candle); Final

Scope Ruling, Two’s Company, Inc., Def.-Int.’s Ex. 5 at 4 (Jan. 13,

1995) (candle with attached gold angel figurine was outside the

scope of the Order because the figurine could not be removed

without damaging the candle).

However, Commerce has not previously determined that a candle

is within the scope of the Order because a design would quickly
Court No. 01-00088 Page 19

burn or melt away. Moreover, the burning or melting of a design is

not equivalent to the easy removal of a figurine or decoration.

First, burning or melting a design cannot be achieved without

damage to the candle. Second, the question of burning or melting

the design requires consideration of the candle’s characteristics

after consumption, while the question of easy removal of a

decoration considers the candle’s characteristics prior to

consumption. Prior rulings indicate that in determining whether

merchandise falls within the scope of an antidumping order,

Commerce looks to the condition of merchandise at the time of

importation or purchase by the consumer, not at the time of

consumption. See, e.g., Final Scope Ruling, Russ Berrie, Inc. at

4 (Sept. 25, 1997) (“The issue before the Department . . . is not

the disposition of the container after the candle is consumed but,

rather, the wax-filled container en toto as it is imported into the

United States.”); Final Scope Ruling, Candles by Finesse at 3 (Mar.

18, 1992) (Spiral candle which left behind a wax sculpture as it

burned was within the scope of the Order because “at the time of

purchase, [the candle] is not distinguishable in appearance from

other spiral candles subject to the Order.”). Accordingly, this

basis for Commerce’s decision is not in accordance with law.

c. The “Minimally Decorative” Standard

Commerce characterized the designs on candles 2 and 3, and

others discussed infra, as “minimally decorative.” See Final Scope
Court No. 01-00088 Page 20

Ruling at 5 ¶¶ 2, 3, Compl. App. III. The term “minimally

decorative” is taken from Commerce’s Final Scope Ruling, Endar

Corp., Def.-Int.’s Ex. 11 (Jan. 10, 2000), in which Commerce ruled

that a candle with a bamboo design that incorporated only one

characteristic knot and ribbed joint was not formed in the shape of

an identifiable object, and was therefore within the scope of the

Order. Commerce stated that “the center joint is only slightly

raised and not easily discernable, and the single knot is not

visible from all sides. Therefore, . . . the minimal decorative

design does not make this candle easily identifiable as bamboo.”

Final Scope Ruling, Endar Corp., Def.-Int.’s Ex. 11 at 6 (Jan. 10,

2000).

Endar may be interpreted to promulgate a two-prong standard

which asks, first, whether the design is easily discernable, and

second, whether it is visible from all sides. The first element of

this “minimally decorative” standard appears to correspond to an

inquiry used in the holiday novelty analysis: whether the design is

easily recognizable as a holiday image. See Final Scope Ruling,

Endar Corp. at 4-5 (July 7, 2000); Final Scope Ruling, Midwest of

Cannon Falls, Inc. at 3 (Oct. 30, 1996); Final Scope Ruling, Enesco

Corp. at 3 (Oct. 30, 1996); Final Scope Ruling, Kohl’s Dep’t

Stores, Inc., Def.-Int.’s Ex. 14 at 6 (Aug. 24, 1998). The second

element, however, asks whether the decoration is visible from

multiple angles. As discussed above, this inquiry has not
Court No. 01-00088 Page 21

previously been applied to holiday novelty candles. See supra text

at pp. 14-18. Absent further explanation, this Court is unable to

determine that its use is supported by substantial evidence and in

accordance with law. Commerce is therefore directed to evaluate

the applicability of this standard to holiday novelty candles.

Assuming, arguendo, that the Endar ruling promulgates a two-

part standard that may be applied to holiday novelty candles,

Commerce’s application of that standard in the instant case is

flawed. In Endar, Commerce drew its conclusion that the candle was

minimally decorated after a two-step inquiry. In the instant

ruling, in contrast, the statement that the design is minimally

decorative is simply an assertion, rather than a conclusion derived

from examination of the candle’s characteristics.8 In addressing

candle 2, the Santa Claus Motif Candy Cane Pillar, Commerce stated,

While the Santa Claus image is specific to the Christmas
holiday, it is only discernable when viewed from above
and would soon melt away once the candle is lit. In a
previous scope ruling, the Department found that a
minimally decorative design that does not make the
product easily identifiable as a novelty candle is not
grounds for excluding an item from the Order.

Final Scope Ruling at 5 ¶ 2, Compl. App. III. This statement does

not demonstrate a clear analysis under the two criteria of Endar.

Although the mention of the Santa Claus image implies that the

8
The standard was similarly applied with respect to candles 2, 3,
5, 6, 8, and 10. The analysis discussed here is applicable to
all of these candles.
Court No. 01-00088 Page 22

design is recognizable, and the statement notes that the design is

visible only from above, rather than from multiple angles, the

decision that the design is minimally decorative, if it is based on

any analysis at all, is based partly on a third criterion not found

in Endar: whether the design will quickly melt.

Similarly, in its analysis of another candle, Commerce said

that “[w]hile the image of Santa Claus is specific to the Christmas

holiday, this particular ornamentation is only minimally decorative

and not viewable from most angles, and therefore is not grounds for

excluding this item from the scope of the Order.” Id. at 6 ¶ 8.

Here, the visibility of the design is mentioned only after

describing the candle’s design as “minimally decorative.” The

description of the candle as “minimally decorative” is itself

merely an assertion.

In summary, Commerce must determine whether the term

“minimally decorative” refers to a two-element standard that is

applicable to holiday novelty candles. If so, Commerce must apply

the standard in an appropriate manner, “articulat[ing a] rational

connection between the facts found and the choice made.”

Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168

(1962).

d. The Combined Effect of Colors and Holiday Design

The Court notes that Commerce omitted any discussion of

whether the combination of color patterns and holiday images might
Court No. 01-00088 Page 23

bring these candles within the holiday novelty exception. As

previously discussed, see supra text at pp. 9-10, decorations that

provide insufficient grounds for exclusion when considered

individually may be sufficient to exclude a candle from the scope

of the Order when considered in combination. See Springwater, 20

CIT at 1195-96; Final Scope Ruling, Endar Corp., Def.-Int.’s Ex.

9 at 4 (Apr. 7, 1999). Here, Commerce should evaluate whether the

combination of red, white, and green colors, the pattern of

diagonal stripes, and the holiday-specific designs may be

sufficient to find that these candles are “specially designed for

use only in connection with the Christmas holiday season.” Scope

Clarification, Pl.’s Ex. 4 at 1.

e. Conclusion

In accordance with the comments above, Commerce should

evaluate whether the requirement of visibility from multiple angles

and the related “minimally decorative” standard are properly

applicable to candles 2 and 3. Absent some further explanation,

Commerce should omit consideration of whether a design would easily

burn or melt away, as this is not in accordance with law. Finally,

if Commerce determines that the individual decorative

characteristics of these candles do not qualify for the holiday

novelty exclusion, the agency should assess whether the combined

effect of the decorations removes these candles from the scope of

the Candles Order.
Court No. 01-00088 Page 24

2. Candles 5, 8, and 10

Candle 5, the Christmas Sock Pillar (Item No. 83036) is a

white candle with an image of a stocking drawn in red on one side.

Candle 8, the Santa Claus Candy Cane Column (Item No. 00016), has

red and white diagonal stripes along the body of the candle and a

small image of Santa Claus visible on one side. Similarly, candle

10, the Christmas Tree with Star Candy Cane Column (Item No.

00016), has red, white and green diagonal stripes along the body of

the candle and a small image of a Christmas tree with a star on one

side.

Although Commerce ruled that the Christmas stocking, Santa

Claus, and Christmas tree images are specific to the Christmas

holiday, all three of these candles were found within the scope of

the Order on the grounds that the designs were not visible from

most angles and were minimally decorative. See Final Scope Ruling

at 5-6 ¶¶ 5, 8, 10, Compl. App. III.

As with candles 2 and 3, Commerce must evaluate whether the

requirement of visibility from multiple angles and the “minimally

decorative” standard are properly applied to holiday novelty

candles. Additionally, Commerce should assess whether the

combinations of colors, patterns, and Christmas images render these

candles “specially designed for use only in connection with the

Christmas holiday season.” Scope Clarification, Pl.’s Ex. 4 at 1.
Court No. 01-00088 Page 25

3. Candle 6

Candle 6, the Santa Claus Pillar (Item No. 82936), is a red

candle with a silhouette drawn in white on one side. As with the

previous three candles, Commerce held that the design was

“minimally decorative” and was not easily viewable from most

perspectives. Here, however, Commerce’s determination that the

candle falls within the scope of the Order rested primarily on the

finding that the Santa Claus image is not easily recognizable.

Commerce has previously withheld novelty candle status on the

grounds that the decorative design is not identifiable or easily

recognizable as a holiday image. See, e.g., Final Scope Ruling,

Endar Corp. at 6 (July 7, 2000) (ruling that candle decorations

that were not recognizable as Christmas trees or holly bushes did

not qualify for holiday novelty exception); Final Scope Ruling,

Midwest of Cannon Falls, Inc. at 3 (Oct. 30, 1996) (ruling that

Easter taper candle decorated with Easter eggs was within the scope

of the Order because the decoration was not readily identifiable as

eggs); cf. Final Scope Ruling, Kohl’s Dep’t Stores, Inc., Def.-

Int.’s Ex. 14 at 6 (Aug. 24, 1998) (finding a wax-filled container

to be outside the scope of the Order because the print on the

container’s lid was “clearly intended to represent Christmas

carolers”); Final Scope Ruling, Enesco Corp. at 3 (Oct. 30, 1996)

(ruling that four candles were outside the scope of the Order

because they “are designed for use only in connection with the
Court No. 01-00088 Page 26

Christmas holiday season” and “each candle’s design contains

identifiable features commonly associated with the Christmas

season”). Such a requirement is in accordance with the terms of

the Scope Clarification, which requires a Christmas novelty

candle’s holiday use to be “clearly indicated by Christmas scenes

or symbols depicted in the candle design.” Scope Clarification,

Pl.’s Ex. 4 at 1 [emphasis supplied].

The design on candle 6 is an undetailed sketch composed of

curving lines. Commerce found the design to be “a stylized outline

of what appears to be a head and shoulders.” Final Scope Ruling at

5 ¶ 6, Compl. App. III. After viewing the candle, we conclude that

Commerce’s finding is a reasonable construction of the evidence.

Accordingly, Commerce’s determination that the design is not easily

recognizable as Santa Claus is supported by substantial evidence.

As the lack of clarity in the design is sufficient to deny holiday

novelty status, the Court does not reach the application of the

“viewable from multiple angles” and “minimally decorative”

standards in this instance.

Conclusion

Commerce should reconsider and clarify its reasoning with

regard to the subject candles. Pursuant to Defendant’s request,

candles 1, 4, 9, 11, and 12 are remanded to Commerce for

reconsideration. Candles 2, 3, 5, 8, and 10 are remanded to

Commerce for further proceedings consistent with this opinion. The
Court No. 01-00088 Page 27

determination of the Department of Commerce as to candle 6, the

Santa Claus Pillar (Item. No. 82936), is affirmed. Plaintiff’s

claim regarding the Moonlite Candles (Item No. 213649) is dismissed

for lack of jurisdiction.

___________________________
Donald C. Pogue
Judge

Dated: May ___, 2002
New York, New York