PRO 2 OT:RR:CTF:ER H307013 KF
U.S. Customs and Border Protection Port of New York/Newark
1100 Raymond Blvd
Newark, NJ 07102
Re: Protest No. 4601-15-101346; United Supply Corporation Dear Port Director:
This is in response to the application for further review of protest number 4601-15- 101346, filed on September 9, 2015. Your office denied the protest, and the application for further review filed by United Supply Corporation (“United Supply”). United Supply requested the denial of further review be set aside pursuant to 19 U.S.C. § 1515(c), and our office granted this request on January 28, 2016. We have reviewed the points raised by your office and the protestant. Our decision is set forth below.
FACTS:
United Supply entered a shipment of merchandise on January 1, 2014, containing candles and glass candle holders. U.S. Customs and Border Protection (“CBP”) reviewed the entry summary (no. XXX-XXXXX98-3) and determined both articles were subject to the antidumping duty order on Petroleum Wax Candles from the People's Republic of China, 51 FR 30686 (Aug. 28, 1986) (Case No. A-570-504-000) (hereinafter “Order”). The scope of the Order includes “certain 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.”
CBP notified United Supply that articles within the entry were deemed subject to antidumping duties by issuing a Notice of Action (CBP Form 29) on April 8, 2014. CBP clarified that two line items of merchandise on the entry summary, glass candle holders classified under
subheading 7013.99.3500 of the Harmonized Tariff Schedule of the United States (“HTSUS”), and candles classified under subheading 3406.00.0000, HTSUS, were found to be a single composite good – a wax-filled container, specifically a petroleum wax candle within a glass candle holder. CBP concluded that both line items comprising the composite good were therefore classifiable under subheading 3406.00.0000, HTSUS, and both fell within the scope of the Order as components of a wax-filled container.
United Supply responded to the Notice of Action on April 23, 2014. United Supply stated that the glass candle holders were designed to be sold in a set with the candles, marketed as “Heaven Scent.” The glass candle holder is round, frosted, hollow, and depicts a cartoon drawing of a baby in a diaper. The candle is round, blue, and fills roughly half the space of the glass candle holder when placed inside. The candle is removable from the glass candle holder, and the two articles are wrapped together in a plastic film and tied with ribbon in order to remain together in a single package. United Supply argued that because the candles were separate and removable from the glass candle holders, the candles and holders were not a composite good but a set. United Supply stated that goods in a set needed to be broken out onto separate line items within the entry summary as distinct articles of merchandise with distinct classifications and values. United Supply also stressed that the Order only applied to the candles, not to the hollow glass candle holders, although the two articles were sold in a single set. United Supply concluded that antidumping duties could therefore only be based on the value of the candle in the set, not the glass candle holder.
CBP maintained its position that the candles and glass candle holders comprised a single composite good. On March 13, 20151, CBP liquidated the entry pursuant to instructions from the
U.S. Department of Commerce (“Commerce”) requiring assessment of antidumping duties on petroleum wax candles entered between August 1, 2013, and July 31, 2014. Message No. 4289310. CBP assessed antidumping duties based on the combined value of the candles and glass candle holders.
ISSUE:
Whether antidumping duties should be assessed on the combined value of the candles and glass candle holder.
LAW AND ANALYSIS:
As an initial matter, we find that pursuant to 19 U.S.C. § 1514(c)(3)(A), this protest was timely filed on September 9, 2015, within 180 days after the March 13, 2015, liquidation date for the subject entry. We also find that this protest meets the criteria for further review. Pursuant to 19 U.S.C. § 1514(a)(5), a protestable issue was raised by challenging CBP’s decision to liquidate the entry subject to an antidumping duty order. Pursuant to 19 C.F.R. § 174.24(b), this protestable issue warrants further review because it involves questions of fact concerning the candles at issue which have not previously been ruled upon. We note that our decision does not
1 Note that in our decision to United Supply’s 19 U.S.C. § 1515(c) request, dated January 28, 2016, the liquidation date was mistakenly noted as March 11, 2015. The actual liquidation date recorded in CBP’s Automated Commercial Environment (ACE) is March 15, 2015.
concern the classification of the goods at issue because United Supply specifically protested the inclusion of the glass candle holder within the scope of the Order. The assessment of antidumping duties does not rely on how goods are classified.
Generally, antidumping duties properly assessed by CBP are not protestable, because CBP has “merely [a] ministerial role in liquidating antidumping duties.” Mitsubishi Elecs. Am., Inc. v. United States, 44 F.3d 973, 977 (Fed. Cir. 1994). CBP’s ministerial role is to follow the liquidation instructions issued by Commerce, and compute the duty owed on imported goods by applying the AD/CVD rate set by Commerce to the goods’ appraised value. However, “[i]ncident to its ‘ministerial’ function of fixing the amount of duties chargeable, [CBP] must make factual findings to determine ‘what the merchandise is, and whether it is described in an order,’ and must decide whether to apply the order to the merchandise.” LDA Incorporado v.
United States, 79 F. Supp. 3d 1331, 1339 (CIT 2015) (citing Xerox Corp. v. United States, 289 F.3d 792, 794-95 (Fed. Cir. 2002)). CBP’s factual determination as to whether merchandise falls within the scope of an antidumping duty order is therefore protestable under 19 U.S.C. § 1514.
The articles described in the Order are “scented or unscented petroleum wax candles made from petroleum wax and having fiber or paper-cored wicks. They are sold in the following shapes: [t]apers, spirals and straight-sided dinner candles; rounds, columns, pillars, votives; and various wax-filled containers.” 81 FR 33,466 (May 26, 2016). Commerce additionally noted that although candles within the scope of the Order are ordinarily classified under subheading 3406.00.00, HTSUS, the “written description remains dispositive.” Id.
Commerce is singularly vested with the authority to interpret and clarify the meaning of an antidumping duty order. Sunpreme Inc. v. United States, 145 F. Supp. 3d 1271, 1285 (CIT 2016). Commerce may provide such clarification in the form of a scope ruling, which clarifies whether a specific product falls within the scope of an antidumping or countervailing duty order. Guangzhou Jangho Curtain Wall Sys. Eng'g Co. v. United States, 181 F. Supp. 3d 1265, 1274 (CIT 2016). Although a scope ruling is requested by a specific party or company, it is issued with respect to the facts and circumstances of the particular products detailed therein. Id. at
1279-1281. Other parties may therefore rely on the ruling to the extent that their imports fit the detailed product description. Id. at 1280. Commerce has issued such a scope ruling describing candles imported with hollow candle holders. JCPenney Purchasing Corporation sought a scope ruling to clarify whether tea-light candles imported with a holder fell within the scope of the Order. Commerce clarified that “the accompanying hollow wax candle holder is not considered to be a petroleum wax candle subject to” the Order. Message No. 2205201 (July 21, 2002).
Neither your office nor the protestant dispute that the blue candle falls within the scope of the Order. The sole outstanding determination is, therefore, whether the Order applies to the hollow glass candle holder. The language of the Order specifically includes “various wax-filled containers,” which Commerce has clarified does not cover “hollow wax candle holder(s)” which accompany a petroleum wax candle. 81 FR 33,466; Message No. 2205201. A wax filled container is one in which the wax is poured into the container and allowed to set while remaining in the container. Here, the candle is removeable from the container such that each distinct article
may be used independently of the other. Therefore, the separable glass candle holder is not a wax-filled container described in scope of the Order. Antidumping duties may thus only be assessed on the candle and not the glass candle holders.
HOLDING:
Based on the above, we find that only the candle, and not the glass candle holder, is subject to antidumping duties under Case No. A-570-504-000; and protest no. 4601-15-101346 is hereby GRANTED IN FULL.
Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (CROSS) at https://rulings.cbp.gov/ which can be found on the U.S. Customs and Border Protection website at http://www.cbp.gov and other methods of public distribution.
Sincerely,
Digitally signed by
GAIL G KAN Date: 2021.08.06
15:31:19 -04'00'
for Craig Clark, Director
Commercial & Trade Facilitation Division