Slip Op. 07-36
UNITED STATES COURT OF INTERNATIONAL TRADE
SPECIALTY MERCHANDISE
CORPORATION,
Before: Jane A. Restani, Chief Judge
Plaintiff,
Evan J. Wallach, Judge
Leo M. Gordon, Judge
v.
Court No. 06-00405
UNITED STATES,
Defendant.
OPINION AND ORDER
[Defendant-Intervenor’s Motion to dismiss denied.]
Dated: March 13, 2007
Greenberg Traurig, LLP (Jeffrey S. Neeley, David R. Amerine) for the Plaintiff
Specialty Merchandise Corporation.
Peter D. Keisler, Assistant Attorney General; Jeanne E. Davidson, Director;
Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice (David S. Silverbrand); and Office of Chief Counsel for
Import Administration, U.S. Department of Commerce (Arthur D. Sidney), of counsel, for
the Defendant.
Barnes & Thornburg, LLP (Randolph J. Stayin, Karen A. McGee) for the
Defendant-Intervenor National Candle Association.
Gordon, Judge: Defendant-Intervenor National Candle Association (“NCA”)
moves pursuant to USCIT R. 12(b)(5) to dismiss Plaintiff Specialty Merchandise
Corporation’s (“SMC”) complaint challenging the United States Department of
Commerce’s (“Commerce”) anticircumvention inquiry of the antidumping duty order on
petroleum wax candles from China. See Later-Developed Merchandise
Anticircumvention Inquiry of the Antidumping Duty Order on Petroleum Wax Candles
from the People’s Republic of China, 71 Fed. Reg. 59,075 (Dep’t of Commerce
Court No. 06-00405 Page 2
Oct. 6, 2006) (final determination anticircumvention inquiry) (“Final Determination”).
NCA contends that Plaintiff was not a party to the anticircumvention inquiry, and
therefore may not challenge the Final Determination.
The motion presents the narrow question of whether Plaintiff was a “party to the
proceeding,” a requirement for challenging an anticircumvention determination in the
U.S. Court of International Trade. Section 516A(a)(2)(A) and (d) of the Tariff Act
of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(A) and (d) (2000)1; see also 28 U.S.C.
§ 2631(c) (2000). As discussed below, Plaintiff was a “party to the proceeding,” and
Defendant-Intervenor’s motion to dismiss is therefore denied.
I. Background
During the anticircumvention proceeding, Commerce issued various deadlines
for the submission of factual information and argument. Final Determination at 59,075.
After these deadlines passed, but before the publication of the Final Determination on
October 6, 2006, Plaintiff filed a notice of appearance with comments. See SMC’s
Aug. 24, 2006 Notice of Appearance and Comments on the Anticircumvention Inquiry
(Pub. R. 1852, Def.-Intervenor’s Mot. to Dismiss Ex. A). No party objected to SMC’s
submission as untimely. In its submission SMC stated that it supported arguments
made by other interested parties that the initiation of the inquiry was “inappropriate” and
that the retroactive application of the preliminary scope determination was “illegal.” Id.
Additionally, SMC argued that the anticircumvention statute “is completely silent as to
1
All further citations to the Tariff Act of 1930 are to the relevant provision in Title 19 of
the U.S. Code, 2000 edition.
2
The public version of the administrative record is cited as “Pub. R.”
Court No. 06-00405 Page 3
the suspension of liquidation and the retroactive application of circumvention
determinations.” Id. Commerce accepted SMC’s submission and placed it upon the
administrative record. Id.
II. Discussion
A civil action challenging a Commerce anticircumvention determination may be
commenced in the Court of International Trade by an interested party who was a “party
to the proceeding.” 19 U.S.C. § 1516a(a)(2)(A) and (d); see also 28 U.S.C. § 2631(c)
(2000). Commerce defines a “party to the proceeding” as “any interested party that
actively participates, through written submissions of factual information or written
argument, in a segment of a proceeding.” 19 C.F.R. § 351.102 (2005); see also
JCM, Ltd. v. United States, 210 F.3d 1357, 1360 (Fed. Cir. 2000). The party’s
participation needs to reasonably convey “the separate status of a party,” Am. Grape
Growers v. United States, 9 CIT 103, 105, 604 F. Supp. 1245, 1249 (1985), and provide
Commerce with “notice of a party’s concerns.” Encon Indus., Inc. v. United States,
18 CIT 867, 868 (1994).
Defendant-Intervenor argues that SMC’s submission fell “short of showing that
SMC meaningfully participated in the Anticircumvention Inquiry” and was “untimely.”
(Def.-Intervenor’s Br. in Supp. of Mot. to Dismiss at 3, 4 (emphasis removed).)
In Commerce’s view, however, “SMC participated in the underlying administrative
proceeding by submitting a written submission containing argument.” (Def.’s Resp. in
Opp’n. to Mot. to Dismiss at 6.) Indeed, SMC’s submission notified all parties of its
appearance and informed Commerce that SMC was joining arguments made by other
Court No. 06-00405 Page 4
respondents in the anticircumvention inquiry. Thus, Commerce was satisfied that SMC
had participated in the proceeding to the extent necessary to reasonably convey notice
of SMC’s “separate status [as] a party.” Am. Grape Growers, 9 CIT at 105,
604 F. Supp. at 1249.
As for the timeliness of Plaintiff’s submission, “[I]t is always within the discretion
of . . . an administrative agency to relax or modify its procedural rules adopted for the
orderly transaction of business before it when in a given case the ends of justice require
it. The action of [an agency] in such a case is not reviewable except upon a showing of
substantial prejudice to the complaining party.” Am. Farm Lines v. Black Ball Freight
Serv., 397 U.S. 532, 539 (1970); see also Dixon Ticonderoga Co. v. United States,
468 F.3d 1353, 1355 (Fed. Cir. 2006), and PAM S.p.A. v. United States, 463 F.3d 1345,
1348 (Fed. Cir. 2006). Defendant-Intervenor argues that it was within Commerce’s
discretion to “refuse to accept late submissions.” (Def.-Intervenor’s Mot. to Dismiss
at 4-5.) Commerce, however, exercised its discretion to accept, rather than reject,
SMC’s submission. That action “is not reviewable except upon a showing of substantial
prejudice to the complaining party.” Am. Farm Lines, 397 U.S. at 539. Defendant-
Intervenor does not argue that it suffered substantial prejudice, and it would be difficult
to make such a showing. Accordingly, Plaintiff’s submission was properly on the
administrative record. It identified Plaintiff as a separate party and presented Plaintiff’s
arguments about the anticircumvention proceeding. Plaintiff was therefore a “party to
the proceeding.”
Court No. 06-00405 Page 5
III. Conclusion
Plaintiff’s submission was properly on the administrative record, and thus Plaintiff
was a “party to the proceeding.“ Accordingly, it is hereby ordered that Defendant-
Intervenor’s motion to dismiss is denied.
/s/ Leo M. Gordon
Judge Leo M. Gordon
Dated: March 13, 2007
New York, New York