468 F.3d 1353 (Fed. Cir. 2006), 06-1042, Dixon Ticonderoga Co. v. United States

Docket Nº:06-1042, 06-1143.
Citation:468 F.3d 1353
Party Name:DIXON TICONDEROGA COMPANY, Plaintiff-Appellee, v. UNITED STATES, Defendant-Appellant, and Musgrave Pencil Company, Rosemoon Pencil Company and General Pencil Company, Defendants-Appellants.
Case Date:November 06, 2006
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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Page 1353

468 F.3d 1353 (Fed. Cir. 2006)

DIXON TICONDEROGA COMPANY, Plaintiff-Appellee,

v.

UNITED STATES, Defendant-Appellant,

and

Musgrave Pencil Company, Rosemoon Pencil Company and General Pencil Company, Defendants-Appellants.

Nos. 06-1042, 06-1143.

United States Court of Appeals, Federal Circuit.

November 6, 2006

Appealed from: United States Court of International Trade Judge Judith M. Barzilay.

Page 1354

Daniel E. Traver , Gray Robinson, PA, of Orlando, Florida, argued for plaintiff-appellee. On the brief was Guy S. Haggard.

David S. Silverbrand, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellant United States. With him on the brief were Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director; Jeanne E. Davidson, Deputy Director, of Washington, DC. Of counsel on the brief was Charles Steuart, Attorney, Office of Chief Counsel, United States Customs and Border Protection, of Washington, DC.

George W. Thompson, Neville Peterson LLP, of Washington, DC, argued for defendants-appellants Musgrave Pencil Company, et al. With him on the brief were Curtis W. Knauss and John M. Peterson, of New York, New York.

Before MICHEL, Chief Judge, ARCHER, Senior Circuit Judge, and LINN, Circuit Judge.

ARCHER, Senior Circuit Judge.

The government and Musgrave Pencil Company, Rosemoon Pencil Company, and General Pencil Company ("the pencil companies") appeal the United States Court of International Trade's judgment granting Dixon Ticonderoga Company's ("Dixon") motion for judgment on the administrative record. Dixon Ticonderoga Co. v. United States Customs & Border Prot., 366 F.Supp.2d 1352 (Ct. Int'l Trade 2005. Because the record contains no evidence that Dixon was substantially prejudiced by the United States Customs and Border Protection's ("Customs") failure to timely publish a notice of intention to distribute assessed duties as required by 19 C.F.R. § 159.62(a), we reverse.

I

The Continued Dumping and Subsidy Offset Act ("CDSOA") provides that assessed duties received from antidumping orders, countervailing duty orders, or findings under the Antidumping Act of 1921 be distributed to "affected domestic producers" for certain qualifying expenditures. 19 U.S.C. § 1975c (2003). As a part of the CDSOA distribution process, Customs is statutorily required to publish a Notice of Intent to Distribute ("Notice") at least 30 days before the distribution of a continued dumping and subsidy offset and to make distributions within 60 days after the fiscal year. Id. § 1975c(c), (d)(2). In implementing the statute, Customs is required by regulation to publish the Notice at least 90 days before the end of the fiscal year. 19 C.F.R. § 159.62(a) (2003). This is generally done in the Federal Register. Claimants seeking a share of the distribution then have 60 days from the date of publication of the Notice to file the certifications required to receive offset distributions. 19 C.F.R. § 159.63(a) (2003).

In 2003, Customs published the Notice on July 14 ("the 2003 Notice"), 78 days prior to the end of the fiscal year and

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twelve days after the regulatory deadline. See Distribution of Continued Dumping and Subsidy Offset to Affected Domestic Producers, 68 Fed. Reg. 471,597 (July 14, 2003). Dixon filed its application to receive a portion of the relevant assessed duties for Fiscal Year 2003 102 days after Customs' publication of the 2003 Notice. Customs denied Dixon's application, and Dixon appealed this denial to the Court of International Trade. Dixon argued to the Court of International Trade (and to us) that Customs' failure to provide notice as required by 19 C.F.R. § 159.62(a) caused it, as well as other domestic pencil manufacturers, to file late.

The Court of International Trade concluded that the timing requirements of 19 C.F.R. § 159.62(a) were merely procedural aids in applying the CDSOA and thus Customs did not lose its authority to administer the CDSOA when it failed to meet its own regulatory timing requirements. Id. at 9. The court also held, however, that Dixon was prejudiced by this regulatory violation. Accordingly, the court granted Dixon's motion and entered judgment in favor of Dixon. Id. at 1356.

The government and the pencil companies appealed, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5).

II

When reviewing decisions by the Court of International Trade pursuant to 28 U.S.C. § 1581(i), we apply the standard of review set forth in 5 U.S.C. § 706. Consol. Bearings Co. v. United States, 348 F.3d 997, 1004 (Fed. Cir. 2003). Thus, we "will set aside Customs' denial of offset distributions only if it is 'arbitrary, capricious,...

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