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Commerce Proposes to Modify Antidumping Exclusion Policy on Certain Novelty Candles from China

September 4, 2010

The U.S. Department of Commerce recently issued a proposed change to exclude certain novelty candles from the scope of the Antidumping Order on petroleum wax candles from China. Comments in support of or opposed to this exclusion are due to the ITA by September 9, 2010.

On August 13, 2010, the U.S. Department of Commerce published a notice in the Federal Register in which it set forth its proposed interpretation on how to treat novelty candles for purposes of the AD Order on petroleum wax candles from China. In short, the proposal is more favorable for importers than for the petitioner (National Candle Association). Commerce summarized its proposed interpretation as follows:

The Department will consider all candle shapes identified in the scope of the Order (i.e., tapers, spirals, and straight-sided dinner candles; rounds, columns, pillars, votives; and various wax-filled containers) to be within the scope of the Order, regardless of etchings, prints, texture, moldings or other artistic or decorative enhancements including any holiday-related art. However, even if they are one of the shapes listed within the scope of the Order, two types of candles will be excluded: (1) those candles known variously as “household candles,” “emergency candles,” or “utility candles,” (which are typically small, thin, pillar-shaped candles that range in height from 2 inches to 3.5 inches, are .18 inch to .25 inch in width, and come in packs of 10 to 24), and birthday numeral candles (which are candles in the shape of numbers that typically range in height from 2 to 4 inches). All other candle shapes and types will be considered outside the scope of the Order. (Emphasis added)

Commerce is inviting the public to comment on this proposed interpretation. Comments are due within 30 days or by September 12, 2010.

A discussion with Commerce has indicated that after the comment period has closed, Commerce intends to publish its final interpretation within 30-60 days, at which time the new policy will be immediately effective upon publication in the Federal Register. Therefore, any holiday-themed candles that will be excluded under the new interpretation need to be imported before the effective date in order to be exempt from AD duties at the time of entry. The expected treatment of novelty candles is summarized as follows:

1. Novelty candles that have been determined to be outside the scope in prior Commerce scope determinations will still be outside the scope after this new interpretation is implemented, as it is Commerce’s policy not to apply revised interpretations retroactively to merchandise in finalized scope determinations.

2. When the new interpretation becomes effective, it will be applied to any novelty candle that is currently involved in any of the numerous scope requests that are currently pending before Commerce. Therefore, if there is a particular candle in a pending scope request, the new treatment will apply.

3. Novelty candles that have not been either the subject of a final scope determination or a pending scope request will be subject to the new interpretation immediately when the new interpretation becomes effective.

If you have any questions with regard to this newsletter or any issues therein, please contact Stephen Spraitzar at (415) 288-0427 or via email at steve.spraitzar@tuttlelaw.com.

Steve Spraitzar is an attorney with the Law Offices of George R. Tuttle in San Francisco.

The information in this article is general in nature, and is not intended to constitute legal advice or to create an attorney-client relationship with respect to any event or occurrence, and may not be considered as such.

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