Slip Op. 05-17
UNITED STATES COURT OF INTERNATIONAL TRADE
CANDLE ARTISANS, INC.,
Plaintiff,
vs.
UNITED STATES INTERNATIONAL
TRADE COMMISSION, DEANNA TANNER BEFORE: Pogue, Judge
OKUN, Chairman,
Court No. O3-00538
and
UNITED STATES BUREAU OF CUSTOMS
AND BORDER PROTECTION, ROBERT C.
BONNER, Commissioner,
Defendants.
[Plaintiffs’ motion for judgment on the agency record denied;
judgment entered for Defendants.]
Decided: February 7, 2005
Morgan Lewis & Bockius LLP (Mark N. Bravin, Yiota G. Souras) for
Plaintiff Candle Artisans, Inc.
James M. Lyons, Acting General Counsel, Rhonda M. Hughes, Acting
Assistant General Counsel, Neal J. Reynolds, Attorney, Office of
the General Counsel, U.S. International Trade Commission, for
Defendant U.S. International Trade Commission.
Peter D. Keisler, Assistant Attorney General, David M. Cohen,
Director, Jeanne E. Davidsdon, Deputy Director, David S.
Silverbrand, Trial Attorney, Commercial Litigation Branch, Civil
Division, U.S. Department of Justice, Charles Steuart, Attorney,
Office of the Chief Counsel, United States Bureau of Customs and
Border Protection, Of Counsel, for Defendant U.S. Bureau of
Customs and Border Protection.
Court No. 03-00538 Page 2
OPINION
POGUE, Judge: In this action, Plaintiff alleges that
Defendants unlawfully deprived it of its share of 2001 and 2002
distributions under the Continued Dumping and Subsidy Offset Act of
2000. 19 U.S.C. § 1675c (2000)(“Byrd Amendment” or “the Act”).
Specifically, Plaintiff claims that Defendants (1) unlawfully
interpreted the provisions of the Byrd Amendment and the Tariff Act
so as to cause only those affected domestic producers who had
waived confidentiality to appear on the list provided by the ITC to
Customs and (2) failed to provide adequate notice of their
interpretation of the two laws.
This matter is before the Court on Plaintiff’s motion for
judgment upon the agency record. The Court has jurisdiction under
28 U.S.C. § 1581(i). The Court denies Plaintiff’s motion and
grants judgment for Defendants.
BACKGROUND
The Plaintiff’s action stems, in part, from a September 4,
1985 antidumping petition filed by the National Candle Association,
alleging material injury or threat of material injury to a domestic
industry from imports of petroleum wax candles from China.1
Petroleum Wax Candles From the People’s Republic of China, 50 Fed.
1
The Court notes that the facts of this case are similar to
those in Cathedral Candle Co. v. U.S. Int’l Trade Comm’n, 27 CIT
__, 285 F. Supp. 2d 1371 (2003). Familiarity with the Court’s
opinion in that proceeding is presumed.
Court No. 03-00538 Page 3
Reg. 39,743 (Dep’t. Commerce Sept. 30, 1985) (initiation of
antidumping duty investigation). Plaintiff participated in the
ITC’s investigation to the extent that it responded to an ITC
questionnaire, and indicated its support for the National Candle
Association’s petition. See Candle Artisans’ Producer’s
Questionnaire, P.R. Doc. No. 2 at 1, 5 (May 28, 1986). After
concluding its investigation, the Department of Commerce published
an antidumping order covering the Chinese imports. Petroleum Wax
Candles from the People’s Republic of China, 51 Fed. Reg. 30,686,
30,686-87 (Dep’t Commerce Aug. 28, 1986) (antidumping duty order).
Fourteen years later, Congress passed the Byrd Amendment. The
Byrd Amendment directs that funds collected pursuant to antidumping
and countervailing duty orders be annually distributed to “affected
domestic producers” (“ADPs”). 19 U.S.C. § 1675c(a). The Byrd
Amendment defines an “affected domestic producer” as any party who
was a petitioner or supporter of an antidumping or countervailing
duty petition, and who remains in operation. 19 U.S.C. §
1675c(b)(1).
Under the Byrd Amendment, Defendant International Trade
Commission (“ITC”) is directed to forward to Defendant United
States Bureau of Customs and Border Protection (“Customs”) a list
of ADPs (“the eligibility list”). 19 U.S.C. § 1675c(b), (d).
Customs, in turn, is directed to publish the eligibility list in
the Federal Register at least thirty days before it distributes any
of the collected duties, so that ADPs may file certifications of
Court No. 03-00538 Page 4
their eligibility, and submit a claim to receive a portion of the
collected duties. 19 U.S.C. § 1675c(d)(2). The Act also
authorizes Customs to promulgate, by regulation, procedures to be
followed in distributing collected duties. 19 U.S.C. § 1675c(c).
Pursuant to the Byrd Amendment, on December 29, 2000,
Defendant ITC transmitted to Defendant Customs a list of affected
domestic producers for all antidumping and countervailing duty
orders then in effect, including the 1986 order covering petroleum
wax candles from China. In the letter accompanying the list (“the
explanatory letter”), Defendant ITC explained that it believed
provisions of the Byrd Amendment were in conflict with §
777[(b)(1)(A)] of the Tariff Act of 1930. See Letter from Stephen
Koplan, Chairman, ITC, to the Hon. Raymond Kelly, Comm’r of
Customs, P.R. Doc. No. 4 at 1 (Dec. 29, 2000). Section
777(b)(1)(A) deals with the confidentiality of certain information
provided to the ITC, including any information designated as
proprietary by the party providing the information. 19 U.S.C. §
1677f(b)(1)(A). ITC maintains that its practice is to regard
indications of support for a petition as confidential information.
See Stipulations Agreed to By the ITC and Candle Artisans, Inc.
(“Stipulations”), Attach. 1 to Pl.’s Mot. J. Agency Rec. (“Pl.’s
Mot.”) at paras. 4 & 5; see also 19 C.F.R. § 201.6(a)(1).2
2
The ITC argues that this regulation, which defines
“business confidential information,” is broad enough to encompass
indications of petition support. See infra note 6.
Court No. 03-00538 Page 5
Moreover, the words “Business Confidential” appeared at the top of
the pages of the questionnaire used in evaluating the petroleum wax
candle petition. See Stipulations, Attach. 1 to Pl.’s Mot. at
paras. 4 & 5., Producer’s Questionnaire (Blank), P.R. Doc. No. 1 at
2-38.
Having explained its belief that there was a conflict between
the Byrd Amendment and the Tariff Act (and accompanying ITC
regulations regarding confidentiality), Defendant ITC placed on the
eligibility list only the names of those ADPs who had affirmatively
waived the confidentiality of their questionnaire responses. See
Stipulations, Attach. 1 to Pl.’s Mot. at para. 3. Defendant ITC
published the list as provided to Customs on its website by early
2001, along with the explanatory letter. See Stipulations, Attach.
1 to Pl.’s Mot. at para. 8. In June 2001, Customs published a
notice of the receipt of the list and its online publication.
Distribution of Continued Dumping and Subsidy Offset to Affected
Domestic Producers, 66 Fed. Reg. 33,920, 33,920-21 (Dep’t Treasury
June 26, 2001) (proposed rule). The June 26, 2001 notice also
stated that the list would be updated as necessary, and asked that
any issues regarding the list be brought to ITC’s attention. Id.
In August 2001, Customs published, in accordance with the Byrd
Amendment, a notice of proposed distribution in the Federal
Register. Distribution of Continued Dumping and Subsidy Offset to
Affected Domestic Producers, 66 Fed. Reg. 40,782 (Dep’t Treasury
Aug. 3, 2001) (notice of intent to distribute offset). This notice
Court No. 03-00538 Page 6
contained an updated list of ADPs, id. at 40,785-99, but was not
accompanied by any explanation of the effects of the Tariff Act or
the ITC’s confidentiality regulation. Id. at 40,782-83. The
notice also stated that certifications for ADPs claiming
distributions under the Byrd Amendment had to be filed by a certain
date (either October 2, 2001, or within ten days of the publication
of a Final Rule regarding distributions).3 Id. at 40,783.
Plaintiff’s name did not appear on the eligibility list at any
time during 2001. Plaintiff did not file for certification for
that year. On July 3, 2002, Customs published a new notice of
intent to distribute collected duties, accompanied by the list of
ADPs.4 Distribution of Continued Dumping and Subsidy Offset to
Affected Domestic Producers, 67 Fed. Reg. 44,722, 44,724-41 (Dep’t
Treasury July 3, 2002) (notice of intent to distribute offset for
fiscal year 2002). This notice required that certifications of
3
The final rule regarding distributions was published in the
Federal Register on September 21, 2001. Distribution of
Continued Dumping and Subsidy Offset to Affected Domestic
Producers, 66 Fed. Reg. 48,546, 48,553 (Dep’t Treasury, Sept. 21,
2001) (final rule). The rule requires that certifications be
filed within sixty days of the publication of notice of intent to
distribute in the Federal Register. 19 C.F.R. § 159.63(a)(2002).
This deadline for certification filing ensures that Customs meets
its own statutory deadline for calculating and distributing
claimants’ shares of collected duties. 19 U.S.C. § 1675c(c).
4
The Court notes that the list of ADPs was not static.
According to Customs, the eligibility list was continuously
updated from the time it appeared on Customs’ website as ADPs
that had initially not been listed demonstrated their eligibility
for certification. Def. Customs’ Opp’n to Pl.’s Mot. J. Agency
R. at 15-16.
Court No. 03-00538 Page 7
eligibility to receive distributions be filed by September 3, 2002.
Id. at 44,722. Plaintiff’s name did not appear on the list of
affected domestic producers published with the July 3, 2002 Federal
Register notice. See id. at 44,725.
In March, 2003, Plaintiff became aware of a competitor’s press
release, in which the competitor announced its forthcoming receipt
of a Byrd Amendment distribution. Pl.’s Mot. at 6. Plaintiff then
wrote to Defendants, informing them that it felt it had been
wrongfully excluded from the lists for 2001 and 2002, and
requesting its share of distributions for those years. Id.
Defendants responded that they could not provide relief for 2001 or
2002, but that Plaintiff’s name would appear on forthcoming
eligibility lists. See id. at 7. In the instant claim, Plaintiffs
ask the Court to direct that Customs distribute to them their share
of duties for both 2001 and 2002.
STANDARD OF REVIEW
Where the Court takes jurisdiction pursuant to 28 U.S.C. §
1581(i), it will “hold unlawful and set aside agency action,
findings, and conclusions found to be . . . arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law.”
5 U.S.C. § 706(2)(A); see 28 U.S.C. § 2640(e).
Court No. 03-00538 Page 8
DISCUSSION
In Cathedral Candle Co. v. U.S. Int’l Trade Comm’n, 27 CIT __,
285 F. Supp. 2d 1371 (2003), the Court held that plaintiffs’
failure to timely file applications for distribution of Byrd
Amendment moneys could not be excused because there was adequate
notice of the filing deadlines. Id. at __, 1375-76. Plaintiffs in
that case alleged that the failure to timely file should be
excused, as ITC’s confidentiality statute and regulation had been
abrogated by the passage of the Byrd Amendment. Id. at __, 1377.
Plaintiffs also argued that the ITC’s failure to give notice of its
interpretation of the confidentiality statute and regulation to
cover petition support was a violation of the Administrative
Procedure Act. Id. at __, 1378.
Plaintiff’s case here mainly reiterates the claims described
above. However, Plaintiff argues a point that was never directly
raised in that case, and which should be addressed. Specifically,
Plaintiff questions whether the ITC could enforce its
interpretation of 19 U.S.C. § 1677f(b)(1)(A)5 and 19 C.F.R. §
5
19 U.S.C. § 1677f(b)(1)(A) states:
(A) In general
Except as provided in subsection (a)(4)(A)of this
section and subsection (c)of this section, information
submitted to the administering authority or the
Commission which is designated as proprietary by the
person submitting the information shall not be
disclosed to any person without the consent of the
person submitting the information, other than—
(i) to an officer or employee of the administering
authority or the Commission who is directly concerned
Court No. 03-00538 Page 9
201.6(a)(1)6 (that support for petitions ought be maintained as
confidential) without having any regulation directly stating this
interpretation. In essence, in addition to arguing that ITC and
Customs should have provided more direct notice of the
“harmonization” of the Byrd Amendment7 and 19 U.S.C. §
with carrying out the investigation in connection with
which the information is submitted or any review under
this subtitle covering the same subject merchandise, or
(ii) to an officer or employee of the United States
Customs Service who is directly involved in conducting
an investigation regarding fraud under this subtitle.
6
19 C.F.R. § 201.6(a)(1) provides, in part:
(a) Definitions. (1) Confidential business
information is information which concerns or relates to
. . . other information of commercial value, the
disclosure of which is likely to have the effect of
either impairing the Commission's ability to obtain
such information as is necessary to perform its
statutory functions, or causing substantial harm to the
competitive position of the person, firm, partnership,
corporation, or other organization from which the
information was obtained, unless the Commission is
required by law to disclose such information. The term
"confidential business information" includes
"proprietary information" within the meaning of section
777(b) of the Tariff Act of 1930 (19 U.S.C. [§]
1677f(b)).
7
Plaintiff appears to make the argument, made also in
Cathedral Candle Co., that no harmonization of the Byrd Amendment
is possible, because the Byrd Amendment trumps the
confidentiality provisions of 19 U.S.C. § 1677f(b)(1)(A) and 19
C.F.R. 201.6(a)(1). In support of this claim, at oral argument,
Plaintiff referred to the Court’s statement in Cathedral Candle
Co. that “[t]he Byrd Amendment directs the ITC to prepare a list
of all petitioners and petition supporters still in business.”
See Cathedral Candle Co., 27 CIT at __, 285 F. Supp. 2d at 1376.
Plaintiff makes too much of the Court’s phrasing, especially as
Court No. 03-00538 Page 10
1677f(b)(1)(A), as was argued in Cathedral Candle Co., Plaintiff
here also argues that the ITC should have provided notice of its
interpretation of 19 U.S.C. § 1677f(b)(1)(A) and 19 C.F.R. §
201.6(a)(1) to cover support for petitions.
As the Court stated in Cathedral Candle Co.:
Neither the statute nor the regulation explicitly require
that the identity of petition supporters or the fact of
their support be maintained as confidential information.
However, the questionnaires distributed in the candle
antidumping investigation were labeled “Business
Confidential,” thereby putting respondents on notice that
their answers were not to be made publicly available, and
bringing the provisions of 19 U.S.C. § 1677f(b)(1)(A)
into play. The ITC’s regulation does not require notice.
Moreover, the ITC interprets its regulation to permit the
agency to maintain information in confidence, where its
release could either hurt the [ITC]’s ability to obtain
information in future investigations or harm the business
competitiveness of questionnaire respondents.
Cathedral Candle Co. v. U.S. Int’l Trade Comm’n, 27 CIT at __, 285
F. Supp. 2d at 1376-77 (2003) (internal citations omitted).
the Court in that case went on to find that the Byrd Amendment
is, in fact, ambiguous on the topic of whether the ITC’s
confidentiality statutes and regulations apply. Id. at __, 1377.
While Plaintiff further appears to argue that even to the extent
it was ambiguous, the statute clearly reserves to Customs the
right to interpret it, see Pl.’s Reply Defs.’ Resps. Pl.’s Mot.
J. Agency R. at 7. Plaintiff has not resolved the question of
how Customs, whatever its own interpretation, is supposed to
force the ITC to reveal information it has long held to be
confidential. Plaintiff claims that 19 C.F.R. § 201.6(g), which
requires that any information received in confidence by the ITC
be maintained in confidence unless its disclosure is required by
law, furnishes the answer to this question, forcing the ITC’s
disclosure as required by law. See Pl.’s Mot. at 13. The
ambiguity of the Byrd Amendment, however, precludes such an
approach. Rather, as this Court concluded in Cathedral Candle
Co., it is for the agencies to reconcile the competing statutory
requirements.
Court No. 03-00538 Page 11
Plaintiff argues that the ITC acted outside the bounds of law by
interpreting 19 U.S.C. § 1677(f)(b)(1)(A) and 19 C.F.R. §
201.6(a)(1) to hold petition support confidential without any formal
notice or regulation making clear that particular interpretation.
Plaintiff’s argument fails for the identical reason that the
notice argument failed in Cathedral Candle Co. The ITC’s
interpretation of 19 U.S.C. § 1677f(b)(1)(A) and 19 C.F.R. §
201.6(a)(1) to preclude the ITC’s revelation of petition support
was, if a rule at all, an interpretative rule which merely
clarified the agency’s position regarding the meaning of a statute
or its own regulations. At least one court addressing this issue
has held that publication of an interpretive rule is only required
where that interpretive rule reflects a change in policy. Knutzen
v. Ebenezer Lutheran Hous. Ctr., 815 F.2d 1343, 1351 (10th Cir.
1987). Here, ITC’s confidential treatment of support for petitions
does not appear to represent a change in policy: it merely is the
application of an old policy in a new situation. Moreover, as the
Court held in Cathedral Candle Co., “even if the publication of all
interpretive rules is required under the Freedom of Information
Act, 5 U.S.C. § 552, it is not clear that it was necessary for
Plaintiff[] here to be apprised of the particular interpretation
adopted by the Defendants in order to act to protect [its] rights
under the Byrd Amendment.” Cathedral Candle Co., 27 CIT at __, 285
F. Supp. 2d at 1379 & n.12.
As in Cathedral Candle Co., Plaintiff here presumably had all
Court No. 03-00538 Page 12
the information necessary to understand its rights under the Byrd
Amendment. Plaintiff presumably knew that it had supported an
antidumping petition and that the Byrd Amendment directed
distributions to those who had done so. Had it been concerned at
all with receiving such distributions, Plaintiff was in no way
precluded from contacting Customs or the ITC. In fact, had
Plaintiff been protecting its own interests, and diligently
following the publications in the Federal Register, its first
course of action upon finding its name not listed would have been
to contact Customs or the ITC.8
8
While it is generally accepted that publication in the
Federal Register constitutes notice to all persons within the
United States of the notice’s contents, Plaintiff argues that the
Court should not “impute knowledge of the labyrinthine passages
of the Federal Register when there is evidence to the contrary,”
citing Sundstrom v. United States, 419 U.S. 934, 937 (1974). See
Pl.’s Mot. at 19. However, the passage to which Plaintiff cites
is from Justice Douglas’ dissent from denial of certiorari in the
case, and as such can offer the Plaintiff no substantial support.
Moreover, most of the other cases which Plaintiff offers for the
proposition that Federal Register notice is constitutionally
inadequate where property rights are at issue involved vested
property rights rightfully implicating the Takings Clause, not
eligibility to apply for a prospective benefit. See Mennonite Bd.
of Missions v. Adams, 462 U.S. 791 (1983) (involving tax sale of
real property); cf. The Covelo Indian Community v. FERC, 895 F.
2d 581, 587-88 (9th Cir. 1990) (actual notice not required where
injury is purely speculative). Here, the damage to the claimed
property interest is purely speculative if only because, even had
Plaintiff properly been listed as an ADP by Defendants, it would
still have had to apply for the benefits. Whether or not it
applied would be the final measure of whether it actually was
owed any benefits, and until such application, the property right
in the distribution, and any injury thereto, would have remained
speculative. This makes the case under consideration
fundamentally different from Mullane v. Central Hanover Bank &
Trust Co., 339 U.S. 306 (1950). In that case, Plaintiff’s
already had a vested right in a common trust fund. Id. at 307.
Court No. 03-00538 Page 13
Plaintiff also appears to argue that even had there been
notice of the ITC’s interpretation of its regulation to cover
petition support, that interpretation would not have been “in
accordance with law.” Plaintiff argues that because the Court in
Cathedral Candle Co. stated that nothing in the governing statutes
or regulations explicitly mandates that the fact of support must be
kept confidential, such support does not in fact constitute
business confidential information, and must be segregated by the
ITC and publicly released. See Pl.’s Mot. at 14, 16. This goes
too far: the mere fact that the statute and regulation do not
explicitly require confidentiality of support does not mean that
such confidentiality is not called for. Indeed, the regulation
requires that any information of commercial value, the disclosure
of which might impede the ITC’s ability to gather information in
the future or which might hurt a respondent’s competitive position,
The case centered around the possible altering of their ownership
(and benefits) out of the common trust stemming from a petition
for a binding judicial settlement of accounts. Id. at 309. The
Court held that plaintiffs were unable to respond to this
proposed settlement because of inadequate notice, and therefore,
their already vested property rights in the trust holdings were
jeopardized. Id. at 316-17. In the case at bar, however,
Plaintiff has no vested right in the Byrd Amendment distribution.
It is only, at best, eligible to apply for the benefits. Under
the holding in Lyng v. Payne, wherein farmers who were eligible
to apply for disaster relief funds sued on due process grounds
under the belief that publication of the eligiblity rules in the
Federal Register was deficient, where a benefit is contingent on
application, and is not already vested or being received, there
is no inherent due process right. Lyng v. Payne, 476 U.S. 926,
942 (1983). Moreover, publication in the Federal Register is
“more than ample.” Id.
Court No. 03-00538 Page 14
not be disclosed. See 19 C.F.R. § 201.6(a)(1).
Thus, there are two criteria for determining whether
information may not be released. First, the data must be “of
commercial value.” Id. It seems obvious to the Court, for the
reasons enunciated below, that the fact of petition support is of
commercial value. Like customer lists or prices, support for a
petition is not information that would be considered uninteresting
or meaningless by competitors, customers, or suppliers. Its value,
like that of customer lists or prices, is strategic: knowing
whether a given company had supported or failed to support a
petition could influence other companies’ behavior, as regards the
petition itself, as regards the company whose position is revealed,
or as regards the market as a whole. Second, revelation of
support (or lack of support) for a petition must be likely to be
detrimental to the ITC’s mission or to a respondent’s competitive
position. Id.; see also Def. ITC’s Resp. Pl.’s Mot. J. Agency R.
at 17. Antidumping duty petitions are often subject to dispute,
and support for the petition, or lack thereof, is a factor in the
ITC’s analysis. See Suramerica de Aleaciones Laminadas, C.A. v.
U.S., 44 F.3d 978, 984 (Fed. Cir. 1994). The ITC’s failure to
treat indications of support or opposition as confidential may
affect its ability to obtain this information. Moreover, public
knowledge as to support or lack thereof may result in compromised
relationships with competitors and with downstream customers.
Thus, it is not an unreasonable reading of the regulation for ITC
Court No. 03-00538 Page 15
to hold the disclosure of support as likely to interfere with the
agency’s ability to gather information.
Accordingly, because indications of petition support (or the
lack thereof) are of commercial value, and because revelation of
such data could harm either the respondent or the ITC, it is not an
unreasonable reading of the regulation for ITC to hold support as
“business confidential information.”
Plaintiff also argues that it should not be held accountable
for the ITC’s self-designation of questionnaire information as
confidential (“Business Confidential” was written at the top of
each page of the questionnaire, other than the cover page, and the
instructions to the Questionnaire warned respondents that responses
were subject to the provisions of 19 U.S.C. § 1677f). See Pl.’s
Mot. at 16; see also Producer’s Questionnaire (Blank), P.R. Doc.
No. 1. In supporting this argument, Plaintiff claims that the
ITC’s treatment of petition support as confidential is undermined
by the fact that the ITC (a) publicly identified Plaintiff’s status
as a respondent and (b) “strongly alluded to” Plaintiff’s support
in public documents. See Pl.’s Mot. at 14. First, there is no
indication that the mere identity of Plaintiff as the respondent to
a questionnaire implicates any of the concerns of either 19 U.S.C.
§ 1677f or 19 C.F.R. § 201.6(a)(1). The first page of the
questionnaire, upon which the name and address of the recipient is
written, was not labeled “Business Confidential” by the ITC. See
Producer’s Questionnaire (Blank), P.R. Doc. No. 1 at 1. Candle
Court No. 03-00538 Page 16
Artisans does not claim that it itself designated that information
as confidential, so there is no way by which 19 U.S.C. § 1677f
could come into play with regard to the mere identity of Plaintiff
as a respondent. Moreover, because, to the extent that Plaintiff
made candles covered by the proposed petition, it was required by
law to fill out the petition in its entirety, Producer’s
Questionnaire (Blank), P.R. Doc. No. 1 at 1, public revelation of
the fact that the questionnaire had been filled out by Plaintiff
could not be considered information subject to either 19 U.S.C. §
1677f or 19 C.F.R. § 201.6(a)(1).
Finally, the document in which Candle Artisans claims that the
ITC strongly alludes to its support, see Pl.’s Mot. at 14, consists
entirely of a chart listing all domestic candle producers alongside
the notation that some producers supported the petition and some
did not. See Candles from the People’s Republic of China,
Determination of the Commission in Investigation No. 731-TA-282
(Final) Under the Tariff Act of 1930, Together with the Information
Obtained in the Investigation, USITC Publication 1888, P.R. Doc.
No. 3 at A-12-A-14 (Aug. 1986). This information is so general
that it cannot be said to reflect at all on Candle Artisans’
particular position regarding the petition. Thus, none of
Plaintiff’s arguments compel a different result from that in
Cathedral Candle Co.
Court No. 03-00538 Page 17
CONCLUSION
While Plaintiff’s claim raises a slightly different argument than
was made by plaintiffs in Cathedral Candle Co., the Court is
nonetheless persuaded that the ITC was not required to engage in
notice-and-comment rulemaking in order to apply its interpretation
of 19 U.S.C. § 1677(f)(b)(1)(A) and 19 C.F.R. § 201.6(a)(1) to hold
Plaintiff’s indication of support for the underlying antidumping
petition confidential. Therefore, because it cannot be shown that
Defendants’ dismissal of Plaintiffs’ applications as untimely was
arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law, Plaintiff’s motion for judgment on the agency
record is denied, and judgment is entered for Defendants.
/s/ Donald C. Pogue
Donald C. Pogue
Judge
Dated: New York, New York
February 7, 2005