Candle Corp. of America v. United States International Trade Commission

Slip Op. 03-40

UNITED STATES COURT OF INTERNATIONAL TRADE

CANDLE CORPORATION OF AMERICA
and BLYTH, INC.,

Plaintiffs,

v.

UNITED STATES INTERNATIONAL TRADE
COMMISSION, DEANNA TANNER OKUN,
Chairman, UNITED STATES CUSTOMS
SERVICE, and ROBERT C. BONNER, BEFORE: Pogue, Judge
Commissioner,
Court No. 02-00751
Defendants,

and

CANDLE-LITE DIVISION OF LANCASTER
COLONY CORPORATION, LUMI-LITE
CANDLE CO., and GENERAL WAX &
CANDLE CO.,

Defendant-Intervenors,

[Plaintiffs’ motion for judgment on the agency record denied;
judgment entered for defendants.]

Decided: April 8, 2003

Hale and Dorr LLP (David A. Wilson) for Plaintiffs Candle
Corporation of America and Blyth, Inc.

Lyn M. Schlitt, General Counsel; James M. Lyons, Deputy General
Counsel, Michael Diehl, Attorney Advisor, for Defendant U.S.
International Trade Commission.

Robert D. McCallum, Jr., Assistant Attorney General, David M.
Cohen, Director, Lucius B. Lau, Assistant Director, Paul D. Kovac,
Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, Ellen C. Daly, Senior Attorney, Office of
the Chief Counsel, United States Customs Service, Of Counsel, for
Defendant United States.

Stewart and Stewart (Terence P. Stewart, Eric P. Salonen, Patrick
J. McDonough, Dennis R. Nuxoll) for Defendant-Intervenors Candle-
Court No. 02-00751 Page 2

Lite Division of Lancaster Colony Corporation, Lumi-Lite Candle
Co., and General Wax & Candle Co.

Pepper Hamilton LLP (Gregory C. Dorris, Edward M. Andries) for
Defendant-Intervenor Muench-Kreuzer Candle Company.

OPINION

POGUE, Judge: This matter is before the Court on the motion of

Plaintiffs Candle Corporation of America and Blyth, Inc.

(collectively “CCA” or “Plaintiffs”) for judgment upon the agency

record. Plaintiffs seek reversal of the United States Customs

Service’s (“Customs”) denial of Plaintiffs’ application for

certification for receipt of payments pursuant to the Continued

Dumping and Subsidy Offset Act of 2000, 19 U.S.C. § 1675c (“CDSOA”

or “Byrd Amendment”).1 This Court exercises jurisdiction under 28

U.S.C. § 1581(i)(2000). We deny Plaintiffs’ motion and grant

judgment for the defendants.

Background

The Byrd Amendment provides for the annual distribution of the

duties collected pursuant to antidumping and countervailing duty

1
The Byrd Amendment has been challenged before the World
Trade Organization. See WTO Appellate Body Report on United
States-Continued Dumping and Subsidy Offset Act of 2002,
WT/DS217/AB/R and WT/DS234/20/AB/R (Jan. 16, 2003)
http://www.wto.org/english/tratop_e/dispu_e/dispu_subjects_index_
e.htm.
Court No. 02-00751 Page 3

orders.2 The distribution, termed a “continued dumping and subsidy

offset,” is available to “affected domestic producers for

qualifying expenditures.” 19 U.S.C. § 1675c(a). The purpose of

the Byrd Amendment is to strengthen the remedial effects of the

antidumping duties imposed on subject merchandise. See Pub. L.

106-387, 114 Stat. 1549, 1549A-72-73, reprinted in 19 U.S.C.A. §

1675c (“United States trade laws should be strengthened to see that

the remedial purpose of those laws is achieved.”); Huaiyin Foreign

Trade Corp. v. United States, slip op. 02-42 at 18-19 (Fed. Cir.

Mar. 21, 2003) (“Far from rendering the antidumping statute penal

in nature . . ., the Byrd Amendment actually enhances its remedial

nature. The duties now bear less resemblance to a fine payable to

the government, and look more like compensation to victims of

anticompetitive behaviors.”).

The term “affected domestic producer” is defined in the

Byrd Amendment as

any manufacturer, producer, farmer, rancher, or worker
representative (including associations of such persons)
that—
(A) was a petitioner or interested party in

2
Under certain conditions, United States trade laws permit
domestic manufacturers to petition the federal government for the
initiation of an antidumping investigation. See 19 U.S.C. §
1673a (2000). “The terms ‘dumped’ or ‘dumping’ refer to the sale
or likely sale of goods at less than fair value.” 19 U.S.C. §
1677(34). An antidumping investigation may result in the
imposition of antidumping duties, pursuant to an antidumping
order, on merchandise imported into the United States. See 19
U.S.C. §§ 1673, 1673d(c)(1), 1673e(a).
Court No. 02-00751 Page 4

support of the petition with respect to which
an antidumping duty order, a finding under the
Antidumping Act of 1921, or a countervailing
duty order has been entered, and
(B) remains in operation.

19 U.S.C. § 1675c(b)(1). The statute specifies, however, that

Companies, businesses, or persons that have ceased the
production of the product covered by the order or finding
or who have been acquired by a company or business that
is related to a company that opposed the investigation
shall not be an affected domestic producer.

Id.

The Byrd Amendment requires the International Trade Commission

(“ITC” or “Commission”) to forward to the Commissioner of Customs

“a list of petitioners and persons with respect to each

[antidumping] order . . . that indicate support of the petition by

letter or through questionnaire response.” 19 U.S.C. §

1675c(d)(1); see also 19 C.F.R. § 159.61(b).3 Subsequently,

Customs must publish a notice of intention to distribute the

continued dumping and subsidy offset and the ITC list of the

affected domestic producers potentially eligible to receive an

offset distribution. 19 U.S.C. § 1675c(d)(2). Customs also

“request[s] a certification from each potentially eligible affected

domestic producer,” and determines whether to grant or deny

3
In the course of an antidumping investigation, the ITC may
issue questionnaires to domestic producers. 19 C.F.R. § 201.9;
see also 19 C.F.R. § 207.11(b)(2) (requiring petitions to include
specific information including “[i]dentification of each product
on which the petitioner requests the Commission to seek pricing
information in its questionnaires”).
Court No. 02-00751 Page 5

certification.4 19 U.S.C. § 1675c(d)(2)-(3); 19 C.F.R. § 159.63.

4
The Byrd Amendment specifically provides as follows:

d) Parties eligible for distribution of antidumping and
countervailing duties assessed

(1) List of affected domestic producers

The Commission shall forward to the Commissioner within
60 days after the effective date of this section in the
case of orders or findings in effect on January 1,
1999, or thereafter, or in any other case, within 60
days after the date an antidumping or countervailing
duty order or finding is issued, a list of petitioners
and persons with respect to each order and finding and
a list of persons that indicate support of the petition
by letter or through questionnaire response. . . .

2) Publication of list; certification

The Commissioner shall publish in the Federal Register
at least 30 days before the distribution of a continued
dumping and subsidy offset, a notice of intention to
distribute the offset and the list of affected domestic
producers potentially eligible for the distribution
based on the list obtained from the Commission under
paragraph (1). The Commissioner shall request a
certification from each potentially eligible affected
domestic producer—
(A) that the producer desires to receive a
distribution;
(B) that the producer is eligible to receive the
distribution as an affected domestic producer; and
(C) the qualifying expenditures [as defined by 19
U.S.C. § 1675c(b)(4)] incurred by the producer
since the issuance of the order or finding for
which distribution under this section has not
previously been made.

(3) Distribution of funds

The Commissioner shall distribute all funds (including
all interest earned on the funds) from assessed duties
received in the preceding fiscal year to affected
domestic producers based on the certifications
described in paragraph (2). The distributions shall be
Court No. 02-00751 Page 6

Additionally, Customs is charged with determining whether

“successor companies” that file applications for certification are

eligible to receive distributions. 19 C.F.R. § 159.61(b)(1)(i).5

On Sept. 3, 1985, the National Candle Association filed a

petition seeking an antidumping investigation of petroleum wax

candles from the People’s Republic of China. Antidumping Petition,

Petroleum Wax Candles from the People’s Republic of China (Sept. 3,

1985), Certified Admin. Rec. (“C.A.R.”) Tab 1 (“Petition”). The

investigation was initiated, and, in due course, an antidumping

order was issued. Antidumping Duty Order: Petroleum Wax Candles

From the People’s Republic of China, 51 Fed. Reg. 30,686 (Dep’t

Commerce Aug. 28, 1986).

On December 29, 2000, the ITC transmitted to Customs “a list

made on a pro rata basis based on new and remaining
qualifying expenditures.

19 U.S.C. § 1675c(d).
5
The parties to this action appear to agree that the
proviso following the “remains in business” requirement can be
read to authorize successor companies to qualify for distribution
because it implies that companies that have been acquired by a
company that supported the investigation may continue to qualify
for distribution. See Pls.’ Mem. Supp. Mot. J. Agency R. at 9
(“Pls.’ Mem.”); Def.’s Opp’n Pls.’ Mot. J. Agency R. at 14-15
(“Def.’s Br.”); Resp. of Def.-Ints. Candle-Lite Division of
Lancaster Colony Corporation, Lumi-Lite Candle Co., and General
Wax & Candle Co. to Pls.’ Mot. J. Agency R. at 15; Def.-Int.
Muench-Kreuzer’s Br. Opp’n Pls.’ Mot. J. Agency R. at 16-18; see
also 19 U.S.C. § 1675c(b)(1) (“Companies, businesses, or persons
that have ceased the production of the product covered by the
order or finding or who have been acquired by a company or
business that is related to a company that opposed the
investigation shall not be an affected domestic producer.”).
Court No. 02-00751 Page 7

of petitioners and other entities that indicated public support of

the petition.” Letter from Stephen Koplan, U.S. International

Trade Commission, to Stuart Seidel, Assistant Commissioner, U.S.

Customs Service (Aug. 27, 2001), C.A.R. Tab 4 at 2. This ITC list

subsequently appeared in Customs’ notice of intent to distribute

continued dumping and subsidy offsets, published in the Federal

Register on August 3, 2001. Distribution of Continued Dumping and

Subsidy Offset to Affected Domestic Producers, 66 Fed. Reg. 40,782,

40,784-99 (Dep’t Treasury Aug. 3, 2001) (notice of intent to

distribute offset); see also Letter from Douglas M. Browning, U.S.

Customs Service, to Jay P. Urwitz, Hale and Dorr LLP (Jan. 18,

2002), C.A.R. Tab 6 at 2. Plaintiff Candle Corporation of America

(“CCA”) was not among the listed eligible firms, and on August 21,

2001, requested that it be added to the list. On August 27, 2001,

in response to Plaintiffs’ request, the ITC declined to add CCA to

the ITC list because “the company did not indicate support of the

petition in either of the questionnaires it submitted in the

original investigation.” Letter from Stephen Koplan, U.S.

International Trade Commission, to Bonnie B. Byers, Hale and Dorr

LLP (Aug. 27, 2001), C.A.R. Tab 4 at 1. The ITC did, however, add

to its list two other U.S. candle producers, Colonial Candle of

Cape Cod and Lenox Candles. Id., C.A.R. Tab 4 at 2-3. Both of

these companies were acquired by CCA in asset purchase agreements.

Letter from Jay P. Urwitz, Hale and Dorr LLP, to Douglas Browning,
Court No. 02-00751 Page 8

U.S. Customs Service (Oct. 2, 2001), C.A.R. Tab 5 at Asset Purchase

Agreements; see also id. at Certification at 2 para. 5 (“CCA

acquired Lenox Candles (‘Lenox’) from Lenox Corporation on June 8,

1987. . . . CCA acquired Colonial Candle of Cape Cod (‘Colonial

Candle’) from General Housewares Corp. on April 19, 1990.”).

Plaintiffs do not challenge the August 27, 2002 ITC decision. See

Joint Stipulation of the Parties at 4 para. 3 (Dec. 17, 2002) (“Jt.

Stip.”).

On October 2, 2001, CCA filed an application for

certification “in response to the Customs Service notice in the

Federal Register concerning the Distribution of Continued Dumping

and Subsidy Offset,” seeking “distribution of continued antidumping

duties on behalf of Lenox Candle and Colonial Candle of Cape Cod.”

Letter from Jay P. Urwitz, Hale and Dorr LLP, to Douglas Browning,

U.S. Customs Service (Oct. 2, 2001), C.A.R. Tab 5 at 1;

Distribution of Continued Dumping and Subsidy Offset to Affected

Domestic Producers, 66 Fed. Reg. at 40,782. CCA claimed that it

was eligible to receive CDSOA distributions as the “successor

company” to Lenox and Colonial, “as provided in Section

159.61(b)(1)(i) of the regulations.” Letter from Jay P. Urwitz,

Hale and Dorr LLP, to Douglas Browning, U.S. Customs Service (Oct.

2, 2001), C.A.R. Tab 5 at 1.6

6
On December 10, 2002, at oral argument, by telephone
conference, on Plaintiffs’ Motion for a Temporary Restraining
Order in this action, Plaintiffs represented to the Court that
Court No. 02-00751 Page 9

On January 18, 2002, Customs denied CCA’s certification

request with regard to eligibility for distributions for fiscal

year 2001. See Letter from Douglas M. Browning, U.S. Customs

Service, to Jay P. Urwitz, Hale and Dorr LLP (Jan. 18, 2002),

C.A.R. Tab 6. Subsequently, Customs denied CCA’s requests for

reconsideration with regard to fiscal years 2001 and 2002. See

Letter from Douglas M. Browning, U.S. Customs Service, to Jay P.

Urwitz, Hale and Dorr LLP (May 3, 2002), C.A.R. Tab 8; Letter from

Michael T. Schmitz, U.S. Customs Service, to Jay P. Urwitz, Hale

and Dorr LLP (Dec. 4, 2002), C.A.R. Tab 10.

Plaintiffs challenge these Customs decisions, asserting that

CCA is entitled to collect CDSOA offset distributions as the

successor company to Lenox and Colonial, Pls.’ Mem. at 9-10, and

alternatively that Lenox and Colonial are independently entitled to

collect CDSOA distributions as “affected domestic producers” that

“remain in operation.” 19 U.S.C. § 1675c(a)-(b); Pls.’ Reply Mem.

Supp. Mot. J. Agency R. at 4-5 (“Pls.’ Reply”).

Standard of Review

In cases arising under 28 U.S.C. § 1581(i), “the Court of

International Trade shall review the matter as provided in section

Lenox and Colonial Candle were corporations that no longer exist.
In briefing the instant motion, however, Plaintiffs argue that
“Lenox and Colonial remain in operation.” Pls.’ Mem. at 8.
Plaintiffs’ latter argument is not relevant to CCA’s cause of
action as it is pled here. See infra Part III pp. 17-18.
Court No. 02-00751 Page 10

706 of title 5.” 28 U.S.C. § 2640(e). Title 5 U.S.C. § 706

provides that this Court shall, inter alia, “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) (2000).

“The scope of review under the ‘arbitrary and capricious’

standard is narrow.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut.

Auto. Ins. Co., 463 U.S. 29, 43 (1983). Nevertheless, “arbitrary

and capricious” review is not without force. Normally, an agency

decision would be arbitrary and capricious

if the agency has relied on factors which Congress has
not intended it to consider, entirely failed to consider
an important aspect of the problem, offered an
explanation for its decision that runs counter to the
evidence before the agency, or is so implausible that it
could not be ascribed to a difference in view or the
product of agency expertise.

Id. The agency must “examine the relevant data and articulate a

satisfactory explanation for its action including a ‘rational

connection between the facts found and the choice made.’” Id.

(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S.

156, 168 (1962)).

In addition, Customs’ determinations must be “in accordance

with law.” 5 U.S.C. § 706(2)(A). Title 5 U.S.C. § 706 “requires

federal courts to set aside agency action that is ‘not in

accordance with law’ . . . which means, of course, any law, and not

merely those laws that the agency itself is charged with
Court No. 02-00751 Page 11

administering.” F.C.C. v. NextWave Personal Communications Inc.,

123 S.Ct. 832, 838 (2003) (citing Citizens to Preserve Overton

Park, Inc. v. Volpe, 401 U.S. 402, 413-14 (1971) (“In all cases

agency action must be set aside if the action was ‘arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance

with law’ or if the action failed to meet statutory, procedural, or

constitutional requirements.”).

As the agency decision challenged here does not have the force

of law and did not issue after a hearing or an equivalent

“relatively formal administrative procedure,” we accord Customs’

statutory interpretations only that respect earned by their

persuasiveness. United States v. Mead Corp., 533 U.S. 218, 230

(2001).

Discussion

I. Support for the Petition

The Byrd Amendment establishes two threshold requirements that

CCA must meet in order to be an “affected domestic producer”

eligible for offset distributions. First, CCA must be “a

petitioner or interested party in support of the petition with

respect to which an antidumping duty order, a finding under the

Antidumping Act of 1921, or a countervailing duty order has been

entered.” 19 U.S.C. § 1675c(b)(1)(A). Second, CCA must “remain[]

in operation.” 19 U.S.C. § 1675c(b)(1)(B).
Court No. 02-00751 Page 12

The ITC determined that CCA did not meet the first requirement

because “the company did not indicate support of the petition in

either of the questionnaires it submitted in the original

investigation.” Letter from Stephen Koplan, U.S. International

Trade Commission, to Bonnie B. Byers, Hale and Dorr LLP (Aug. 27,

2001), C.A.R. Tab 4 at 1.

The evidence in the record supports this determination.

Question number nine on the ITC’s questionnaire asked whether the

responding company “support[ed] the petition in this

investigation[.]” Producer’s Questionnaire (Sept. 19, 1985),

C.A.R. Tab 2 at 2. In its first questionnaire response, CCA did not

check either the “Yes” or the “No” box provided as a form for

answering this question. Id. However, in the space provided for

comments concerning question nine, CCA stated that “[o]ur firm

would favor legislation if dumping were proved. However, it should

be noted that any added tariffs that may be imposed on either China

or Brazil, [sic] would have a negative effect on our P & L.” Id.

In its second questionnaire response, CCA checked the “No” box in

answering question nine, and also restated its prior comment.7

Producer’s Questionnaire (May 15, 1986), C.A.R. Tab 3 at 2.

7
The comment in the second questionnaire referred only to
China. CCA stated that “[o]ur Firm would favor legislation if
dumping were proved. However, it should be noted that any added
tariffs that may be imposed on China would have a negative effect
on our P & L.” Producer’s Questionnaire (May 15, 1986), C.A.R.
Tab 3 at 2.
Court No. 02-00751 Page 13

The comment included in CCA’s first questionnaire response may

reasonably be interpreted to indicate opposition to the petition.

Therefore, the ITC’s interpretation of the comment as failing to

indicate support for the petition is not arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law.

Furthermore, the second questionnaire clearly indicates that CCA

did not support the petition. Accordingly, the ITC’s determination

that CCA could not qualify as an “affected domestic producer” due

to its failure to support the petition is clearly supported by

evidence in the record.

Customs subsequently relied on the ITC’s eligibility

determination in denying CCA’s certification request for offset

distributions. See Letter from Douglas M. Browning, U.S. Customs

Service, to Jay P. Urwitz, Hale and Dorr LLP (Jan. 18, 2002),

C.A.R. Tab 6 at 2 (“The ITC list of affected domestic producers was

included in the aforementioned [Federal Register] Notice of August

3, 2001. CCA was not on the list . . . . In view of the ITC

response, Customs cannot accept your certification as an affected

domestic producer.”). As the ITC’s decision was both in accord

with the Byrd Amendment and supported by the record, we cannot

conclude that Customs’ reliance thereon was arbitrary or

capricious, an abuse of discretion, or otherwise not in accordance

with law.
Court No. 02-00751 Page 14

II. Eligibility as a Successor Company

CCA asserts that Lenox and Colonial, as original supporters of

the petition,8 qualify as “affected domestic producers,” Pls.’ Mem.

at 8, and that therefore CCA is eligible to claim CDSOA offset

distributions on behalf of Lenox and Colonial as a “successor

company” under 19 C.F.R. § 159.61(b)(1)(i).9 Id. at 9; Pls.’ Reply

at 5.

Customs concluded that CCA was ineligible to claim offset

distributions as a successor company because CCA itself originally

opposed the petition. In its letter denying CCA’s successorship

claim, Customs explained:

It is Customs[’] interpretation of the statute that
Congress did not intend to prevent legitimate domestic
producers from claiming an offset under the CDSOA simply
because of a name change.
However, Congressional intent is clear in that the

8
No party to this action disputes that Lenox and Colonial
supported the original antidumping petition.
9
Title 19 C.F.R. § 159.61(b)(1)(i), titled “Successor
Company,” states as follows:

In the case of a company that has succeeded to the
operations of a predecessor company that appeared on
the USITC list, the successor company may file a
certification to claim an offset as an affected
domestic producer on behalf of the predecessor company.
In its certification, the company must name the
predecessor company to which it has succeeded and it
must describe in detail the duly authorized succession
by which it is entitled to file the certification.
Court No. 02-00751 Page 15

CDSOA does prohibit parties who opposed the original
petition from qualifying for an offset under the CDSOA by
virtue of their acquiring one of the injured domestic
parties in that particular case.

Letter from Douglas M. Browning, U.S. Customs Service, to Jay P.

Urwitz, Hale and Dorr LLP (Jan. 18, 2002), C.A.R. Tab 6 at 2.

Title 19 C.F.R. § 159.61(b)(1)(i) permits a “successor

company” to “file a certification to claim an offset as an affected

domestic producer on behalf of the predecessor company.” Read in

isolation, the regulation might permit a successor to claim an

offset distribution even if the successor itself did not qualify as

an affected domestic producer.10

However, eligibility for certification under the regulation is

subject to the limitations imposed by 19 U.S.C. § 1675c, which

requires that a claimant (1) have supported the petition, and (2)

remain in operation. 19 U.S.C. § 1675c(a)-(b). As discussed

above, CCA cannot qualify to receive offset distributions under the

statute, because the company did not support the petition. See

supra pp. 11-13. The agency regulation cannot remove the statutory

requirements of support for the petition and continued operation.

Consequently, Customs interprets its regulation to bar claims by

successor companies that cannot qualify under the statute. We

cannot conclude that this interpretation of the successor

regulation is inconsistent with the statute or otherwise

10
We are not asked to decide whether the regulation could
be so interpreted in the face of the statutory prohibition.
Court No. 02-00751 Page 16

unpersuasive.

Plaintiffs also rely on Barnhart v. Sigmon Coal Co., 534 U.S.

438 (2002), in arguing that the proviso that follows the second

requirement for “affected domestic producer” status prohibits the

regulatory interpretation adopted by Customs here. In Barnhart,

the Supreme Court concluded that because the Coal Industry Retirees

Health Benefits Act of 1992 explicitly indicates who may be

assigned liability for beneficiaries, the “related persons”

provision of the Act did not permit imposition of liability on

successors in interest of signatory coal operators. 534 U.S. at

451-54.

Plaintiffs note that the Byrd Amendment precludes eligibility

for offset distributions for “[c]ompanies, businesses, or persons

that . . . have been acquired by a company or business that is

related to a company that opposed the investigation.” 19 U.S.C. §

1675c(b)(1). CCA argues that “the statute excepts only those

producers acquired by companies ‘related to’ companies that opposed

the investigation, and not producers acquired directly by an

opposing company itself.” Pls.’ Mem. at 10. Plaintiffs claim that

here, as in Barnhart, the agency’s action is inconsistent with

explicit statutory provisions limiting eligibility only of

companies “related to” companies that opposed the petition.

Plaintiffs’ argument, however, ignores the first eligibility

requirement of the Byrd Amendment itself. Customs reasonably
Court No. 02-00751 Page 17

concluded that CCA’s failure to qualify under the provisions of the

statute prevented the company from qualifying as a successor under

19 C.F.R. § 159.61. Because the question of CCA’s eligibility was

foreclosed by the express language of the statute, we cannot

conclude that Barnhart requires a different result.

Accordingly, because we cannot conclude that Customs’ denial

of Plaintiffs’ application for certification for receipt of

payments pursuant to the Byrd Amendment is arbitrary or capricious,

an abuse of discretion, or otherwise not in accordance with law,

Plaintiffs’ motion must be denied.

III. Lenox and Colonial as Eligible Affected Domestic
Producers

Finally, CCA claims that it need not be a successor company in

order for Lenox and Colonial to be eligible to receive CDSOA offset

distributions. Pls.’ Reply at 4-5. CCA states that “Lenox and

Colonial did not . . . lose their affected domestic producer status

by not being separately incorporated and not being acquired by a

‘successor company’ as a corporate whole.” Id. at 5.

The claim that Lenox and Colonial “remain[] in operation,” 19

U.S.C. § 1675c(b)(1)(B), was raised for the first time in the

plaintiffs’ reply brief. See Compl. at 12; Pls.’ Mem. at 7-16;

Pls.’ Reply Mem. at 4-5; see also Jt. Stip. at 4 para. 5 (“At this

time, there is no need for a voluntary remand on the ‘remains in

operation’ issue.”). Consequently, this issue is not properly
before the Court and we do not consider it.

Conclusion

Accordingly, because we cannot conclude that Customs’ denial

of Plaintiffs’ application for certification for receipt of

payments pursuant to the Byrd Amendment is arbitrary or capricious,

an abuse of discretion, or otherwise not in accordance with law,

Plaintiffs’ motion must be denied.

_________________________
Donald C. Pogue
Judge

Dated: New York, New York
April 8, 2003
 ERRATUM

Candle Corp. of Am. v. United States, Court No. 02-00751, Slip Op. 03-40, dated April 8, 2003.

Page 1: The caption should include Muench-Kreuzer Candle Company, Defendant-
Intervenor.

April 9, 2003