Cathedral Candle Co. v. U.S. Intern. Trade

• Decision Date: 14 October 2003
• Docket Number: SLIP OP. 03-131.,Court No. 03-00196.
• Citation: 285 F.Supp.2d 1371
• Parties: CATHEDRAL CANDLE COMPANY and The A.I. Root Company Plaintiffs, v. UNITED STATES INTERNATIONAL TRADE COMMISSION, Deanna Tanner Okun, Chairman, and United States Bureau of Customs and Border Protection, Robert C. Bonner, Commissioner, Defendants.
• Court: U.S. Court of International Trade

285 F.Supp.2d 1371

CATHEDRAL CANDLE COMPANY and The A.I. Root Company Plaintiffs, v. UNITED STATES INTERNATIONAL TRADE COMMISSION, Deanna Tanner Okun, Chairman, and United States Bureau of Customs and Border Protection, Robert C. Bonner, Commissioner, Defendants.

SLIP OP. 03-131.

Court No. 03-00196.

United States Court of International Trade.

October 14, 2003.

Patton Boggs LLP, Washington, DC (Daniel E. Waltz, Steven M. Schneebaum, Martha M. Kendrick, Amy Davine Kim) for Plaintiffs Cathedral Candle Company and The A.I. Root Company.

Lyn M. Schlitt, General Counsel, James M. Lyons, Deputy General Counsel, Mark B. Rees, Attorney-Advisor, 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, 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 Bureau of Customs and Border Protection, for Defendant U.S. Bureau of Customs and Border Protection, of counsel.

OPINION

POGUE, Judge.

This matter is before the Court on Plaintiffs' motion for judgment upon the agency record. Plaintiffs allege that Defendants unlawfully deprived them of their share of 2001 and 2002 distributions under the Continued Dumping and Subsidy Offset Act of 2000. 19 U.S.C. § 1675c (2000). The Court has jurisdiction under 28 U.S.C. § 1581(i). The Court denies Plaintiffs' motion and grants judgment for Defendants.

Background

On September 4, 1985, the National Candle Association filed an antidumping petition alleging material injury or threat of material injury to a domestic industry from imports of petroleum wax candles from China. Petroleum Wax Candles From the People's Republic of China, 50 Fed.Reg. 39,743, 39,745 (Dep't. Commerce Sept. 30, 1985) (initiation of antidumping duty investigation). During the consideration of the petition by the Department of Commerce and Defendant International Trade Commission ("ITC"), questionnaires were sent to domestic producers of candles. E.g., Candles From the People's Republic of China, Producer's Questionnaire, ITC's Certified Admin. Rec. ("ITC CAR") List 1, Doc. 1 ("Blank Questionnaire"); Response from the A.I. Root Company to Candles From the People's Republic of China Producer's Questionnaire, ITC CAR List 1, Doc. 2 (June 20, 1986) ("Root's Quest. Resp."); Response from Cathedral Candle Company to Candles from the People's Republic of China Producer's Questionnaire, ITC CAR List 1, Doc. 3 (May 29, 1986) ("Cathedral's Quest. Resp."). Both Plaintiffs received questionnaires. Id. Respondents to the questionnaires were asked to state whether they supported the National Candle Association's petition. Root's Quest. Resp. at 5; Cathedral's Quest. Resp. at 5. Plaintiffs both replied in the affirmative. Id. After an investigation, on August 28, 1996, 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).

The Continued Dumping and Subsidy Offset Act of 2000 ("Byrd Amendment" or "the Act") 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, ITC must forward to Defendant United States Bureau of Customs and Border Protection ("Customs") a list of ADPs ("the potential eligibility list"). 19 U.S.C. § 1675(b), (d). Customs, in turn, must publish the potential 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 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. Letter from Stephen Koplan, Chairman, Int'l Trade Comm'n, to The Honorable Raymond Kelly, Comm'r of Customs, ITC CAR List 1, Doc. 5 at 5. (Dec. 29, 2000) ("ITC Support List"). 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 ("Tariff Act"). See id. at 1. That section deals with the confidentiality of certain information provided to the agency, including any information designated as proprietary by the party providing the information. 19 U.S.C. § 1677f(b)(1)(A). The ITC maintains that its practice is to regard indications of support for a petition as confidential information; moreover, the words "Business Confidential" appeared at the top of the pages of the questionnaire used in evaluating the petroleum wax candle petition. Def. ITC's Opp'n to Mot. J. Agency R. at 16-17; 19 C.F.R. § 201.6 (2000); Blank Questionnaire, ITC CAR List 1, Doc. 1.

Having explained its belief that there was a conflict between the Act and its regulation under the Tariff Act, Defendant ITC placed on the potential eligibility list only the names of those ADPs who had affirmatively waived the confidentiality of their questionnaire responses. ITC Support List, ITC CAR List 1, Doc. 5. Defendant Customs published the list as provided by Defendant ITC on its website by early 2001, along with the explanatory letter. Def. ITC's Opp'n to Mot. J. Agency R. at 23. 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) ("June 26, 2001 Notice"). 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 the 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 for fiscal year 2001) ("August 3, 2001 Notice"). That notice contained an updated list of ADPs, but was not accompanied by any explanation of the effects of the Tariff Act or the ITC's confidentiality regulation. Id. The August 3, 2001 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).¹ Id.

Plaintiffs' names did not appear on the potential eligibility list at any time during 2001. ITC Support List, ITC CAR List 1, Doc. 5; August 3, 2001 Notice, 66 Fed. Reg. at 40,782. Plaintiffs 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.² 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) ("July 3, 2002 Notice"). This notice required that certifications of eligibility to receive distributions be filed by September 3, 2002. Id. at 44,722. Plaintiffs' names did not appear on the list of affected domestic producers published with the July 3, 2002 notice. See id. at 44,724-41.

In late 2002, Plaintiffs learned through "back channels" that they likely were eligible for a share of duties collected pursuant to the antidumping order on wax petroleum candles from China. See Pls.' Reply Mot. J. Agency R. at 10-11. Plaintiffs wrote to the ITC to request a review of the record to determine if they had supported the National Candle Association's petition, additionally waiving the confidentiality of their questionnaire responses. Letter from Louis Steigerwald III, Pres., Cathedral Candle Company, to Lynn Featherstone, Dir., Office of Investigations, ITC, ITC CAR List 1, Doc. 6 (Sept. 19, 2002); Letter from Brad I. Root, Vice Pres., The A.I. Root Company, to Lynn Featherstone, Dir., Office of Investigations, ITC, ITC CAR List 1, Doc. 7 (Sept. 23, 2002). The ITC replied to both parties, affirming that they had supported the petition. Letter from Deanna Tanner Okun, Chairman, ITC, to Louis Steigerwald III, Pres., Cathedral Candle Company, ITC CAR List 1, Doc. 10 (Sept. 24, 2002); Letter from Deanna Tanner Okun, Chairman, ITC, to Brad I. Root, Vice Pres., the A.I. Root Company, ITC CAR List 1, Doc. 12 (Sept. 25, 2002). Cathedral Candle Company and the A.I. Root Company then attempted to file certifications of eligibility for 2002 distributions with Customs on October 2, 2002 and October 8, 2002, respectively. Def. Customs' Opp'n Mot. J. Agency R. at 22; Letter from David C. Smith, Jr., Collier Shannon Scott PLLC, to Jeffrey J. Laxague, Office of Regs. and Rulings, Customs, Customs' Cert. Admin. Rec. ("Customs CAR") Doc. 1 (Oct. 2, 2002); Letter from David C. Smith, Jr., Collier Shannon Scott, PLLC, to Jeffrey J. Laxague, Office of Regs. and Rulings, Customs, Customs CAR Doc. 2 (Oct. 8, 2002).³ These attempts were rejected by Customs as untimely, the September...