**United States Court of Appeals for the Federal Circuit**

03-1348

CANDLE CORPORATION OF AMERICA,

> Plaintiff-Appellant,

and

BLYTH, INC.,

> Plaintiff,

v\.

UNITED STATES INTERNATIONAL TRADE COMMISSION and

DEANNA TANNER OKUN, Chairman, United States International Trade
Commission,

> Defendants,

and

UNITED STATES BUREAU OF CUSTOMS AND BORDER PROTECTION and

ROBERT C. BONNER, Commissioner, United States

Bureau of Customs and Border Protection,

> Defendants-Appellees,

and

CANDLE-LITE DIVISION OF LANCASTER COLONY CORPORATION,

LUMI-LITE CANDLE CO., and GENERAL WAX & CANDLE CO.,

> Defendants-Appellees,

and

MUENCH-KREUZER CANDLE COMPANY,

> Defendant-Appellee.

[David A. Wilson]{.underline}, Hale and Dorr LLP, of Washington, DC,
argued for plaintiff-appellant. With him on the brief was [Joshua A.
Davenport]{.underline}.

[Paul D. Kovac]{.underline}, Trial Attorney, Commercial Litigation
Branch, Civil Division, United States Department of Justice, of
Washington, DC, argued for defendants-appellees, United States Bureau of
Customs and Border Protection, et al. With him on the brief were [Peter
D. Keisler]{.underline}, Assistant Attorney General, [David M.
Cohen]{.underline}, Director and [Jeanne E. Davidson]{.underline},
Deputy Director. Of counsel on the brief was [Ellen C.
Daly]{.underline}, Senior Attorney, Office of Chief Counsel, United
States Bureau of Customs and Border Protection, of Washington, DC. Of
counsel was [Lucius B. Lau]{.underline}.

[Eric P. Salonen]{.underline}, Stewart and Stewart, of Washington, DC,
argued of defendants-appellees, Candle-lite Division of Lancaster Colony
Corporation, et al. With him on the brief were [Terence P.
Stewart]{.underline} and [Patrick J. McDonough]{.underline}.

[Gregory C. Dorris]{.underline}, Pepper Hamilton LLP, of Washington, DC,
argued for defendant-appellee, Muench-Kreuzer Candle Company. With him
on the brief was [Edward M. Andries]{.underline}.

Appealed from: United States Court of International Trade

Judge Donald C. Pogue

United States Court of Appeals for the Federal Circuit

03-1348

CANDLE CORPORATION OF AMERICA,

> Plaintiff-Appellant,

and

BLYTH, INC.,

> Plaintiff,

v\.

UNITED STATES INTERNATIONAL TRADE COMMISSION and

DEANNA TANNER OKUN, Chairman, United States International Trade
Commission,

> Defendants,

and

UNITED STATES BUREAU OF CUSTOMS AND BORDER PROTECTION and

ROBERT C. BONNER, Commissioner, United States Bureau of Customs and
Border Protection,

> Defendants-Appellees,

and

CANDLE-LITE DIVISION OF LANCASTER COLONY CORPORATION,

LUMI-LITE CANDLE CO., and GENERAL WAX & CANDLE CO.,

> Defendants-Appellees,

and

MUENCH-KRUEZER CANDLE COMPANY,

> Defendant-Appellee.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

DECIDED: July 2, 2004

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Before MICHEL, GAJARSA, and DYK, [Circuit Judges]{.underline}.

Opinion for the court filed by [Circuit Judge]{.underline} DYK.
Dissenting opinion filed by [Circuit Judge]{.underline} GAJARSA.

This case involves a proceeding pursuant to the Continued Dumping and
Subsidy Offset Act of 2000, ­­­Pub. L. No. 106-387, § 1(a), 114 Stat. 1549,
1549A-73 (codified at 19 U.S.C. § 1675c (2000)) ("CDSOA" or "Byrd
Amendment"), which entitled "affected domestic producers" to recover
antidumping duties imposed on foreign producers. 19 U.S.C. § 1675c(a).
The United States Bureau of Customs and Border Protection ("Customs")
denied the requests by Candle Corporation of America ("CCA") for offset
distributions pursuant to the Byrd Amendment for fiscal years 2001 and
2002. CCA sought review of these decisions in the United States Court of
International Trade, which granted judgment in the government's favor on
the ground that CCA (either on its own behalf or on behalf of the
entities it acquired) cannot qualify to receive offset distributions
because it did not support the petition that led to the imposition of
antidumping duties. [Candle Corp. of Am. v. United States Int'l Trade
Comm'n]{.underline}, 259 F. Supp. 2d 1349, 1356 (Ct. Int'l Trade 2003).
We affirm, although we do so on a somewhat different theory than that of
the Court of International Trade.

BACKGROUND

Stripped of irrelevancies, the background may be simply stated. On
September 3, 1985, the National Candle Association, an organization of
domestic candle makers, filed a petition for an antidumping
investigation of petroleum wax candles from the People's Republic of
China. Among other entities, Lenox Candles ("Lenox") and Colonial
Candles of Cape Cod ("Cape Cod") supported the petition. Appellant CCA
did not, although it was listed among "OTHER U.S. CANDLE MANUFACTURERS"
in the petition. In response to the first of two separate questionnaires
from the United States International Trade Commission ("ITC"), CCA
declined to support the petition because CCA imported the dumped candles
and, therefore, tariffs would adversely affect its income. In response
to the second questionnaire, CCA opposed the petition. The ITC
ultimately published an antidumping order on August 28, 1986, and
antidumping duties were collected. [Antidumping Duty Order: Petroleum
Wax Candles From the People's Republic of China]{.underline}, 51 Fed.
Reg. 30,686 (Aug. 28, 1986).

The Byrd Amendment requires that duties assessed pursuant to an
antidumping duty order be distributed in offset distributions to
affected domestic producers[^1] for their qualifying expenditures.[^2]
19 U.S.C. § 1675c(a). The ITC prepares a list of affected domestic
producers, which it forwards to Customs. [See]{.underline}
[id.]{.underline} § 1675c(d)(1). The affected domestic producers must
certify that they desire and are entitled to a distribution, and they
must disclose their qualifying expenditures. [See]{.underline}
[id.]{.underline} § 1675c(d)(2). Customs then distributes the funds
among the affected domestic producers on a pro rata basis.
[See]{.underline} [id.]{.underline} § 1675c(d)(3). In addition, Customs
regulations provide that successor companies to affected domestic
producers may receive any offset distributions to which the predecessor
company is entitled. 19 C.F.R. § 159.61(b)(1)(i) (2003).[^3] Pursuant to
the Byrd Amendment, Customs had available \$18,317,982.28 of offset
distributions for the petroleum wax candle antidumping order for fiscal
year 2001, CDSOA FY2001 Disbursements FINAL, [available at]{.underline}
http://www.customs.ustreas.gov/xp/cgov/import/
add_cvd/cont_dump/cdsoa_01/, and had available \$69,536,243.70 for
fiscal year 2002, CDSOA FY2002 Disbursements FINAL, [available
at]{.underline} http://www.customs.ustreas.gov/
xp/cgov/import/add_cvd/cont_dump/cdsoa_02/.

After the entry of the antidumping order, CCA acquired substantially all
of the assets of Lenox and Cape Cod (which had supported the petition)
through separate asset purchase agreements in 1987 and 1990,
respectively. In 2001 CCA sought a Byrd Amendment offset distribution on
behalf of Lenox and Cape Cod. However, Customs denied CCA's claim,
stating that CCA did not qualify for an offset distribution either as an
affected domestic producer or as a successor company to Lenox and Cape
Cod. CCA again sought a Byrd Amendment offset distribution in 2002,
which Customs denied.

On November 27, 2002, CCA filed a complaint in the Court of
International Trade seeking review pursuant to 28 U.S.C. § 1581(i) of
Customs' denial of offset distributions, arguing that it qualified as an
affected domestic producer both in its own right and as a successor
company to Lenox and Cape Cod. On April 8, 2003, the Court of
International Trade denied CCA's motion for summary judgment and granted
judgment in favor of the government. [Candle Corp.]{.underline}, 259 F.
Supp. 2d at 1350. First, the court held that CCA did not qualify as an
"affected domestic producer" because it had not supported the petition
for the antidumping investigation. [Id.]{.underline} at 1354. Second, it
held that CCA did not qualify as a "successor company" to Lenox and Cape
Cod pursuant to the Byrd Amendment because CCA had not supported the
petition. [Id.]{.underline} at 1356. Third, the court refused to
consider CCA's argument that it was entitled to claim on behalf of Lenox
and Cape Cod on the theory that they allegedly "remain\[ \] in
operation" because CCA raised the argument for the first time in its
reply brief. [Id.]{.underline} at 1357.

CCA appealed, and we have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(5).

DISCUSSION

In reviewing decisions by the Court of International Trade in actions
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]{.underline}, 348 F.3d 997, 1004 (Fed. Cir. 2003). Accordingly,
we will set aside Customs' denial of offset distributions only if it is
"arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law." 5 U.S.C. § 706(2)(A) (2000).

I

The central question before us is whether a company that opposed an
antidumping investigation can recover Byrd Amendment offset
distributions by acquiring businesses that would have been entitled to
such distributions. The pertinent statutory language is:

> Duties assessed pursuant to a countervailing duty order, an
> antidumping duty order, or a finding under the Antidumping Act of 1921
> shall be distributed on an annual basis under this section to the
> affected domestic producers for qualifying expenditures. Such
> distribution shall be known as the "continued dumping and subsidy
> offset". \[sic\]

19 U.S.C. § 1675c(a). The statute defines the term "affected domestic
producer" as:

> any manufacturer, producer, farmer, rancher, or worker representative
> (including associations of such persons) that---
>
> \(A\) was 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, and
>
> \(B\) remains in operation.
>
> [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.]{.underline}

[Id.]{.underline} § 1675c(b)(1) (emphasis added).

Three things are clear. First, as CCA admits, CCA itself does not
qualify as an "affected domestic producer." Second, Lenox and Cape Cod
qualify as "affected domestic producers" if they "remain\[ \] in
operation," unless disqualified by the last sentence of 1675c(b)(1).
Third, Customs' regulation allows CCA as the acquiring company to claim
on behalf of Lenox and Cape Cod. It states:

> In the case of a company that has succeeded to the operations of a
> predecessor company that appeared on the \[ITC list of potential
> affected domestic producers\], 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.

19 C.F.R. § 159.61(b)(1)(i). That regulation seems to us permissible
under the statute, which authorizes Customs to spell out procedures for
claims under the statute.[^4] The sole question, therefore, is whether
the last sentence of section 1675c(b)(1) disqualifies Lenox and Cape Cod
from being affected domestic producers.

Under that provision, otherwise qualified acquired entities are
disqualified only if they "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). The statute in this respect is hardly a model of clarity,
and there are two possible interpretations. First, the statute could
mean that, whether the acquirer was a "company" or a "business," it must
not have been "related to a company that opposed the investigation." In
other words, the "related to" language applies to both the word
"company" and the word "business." Under this interpretation, since a
company cannot "be related to itself," [Barnhart v. Sigmon Coal
Co.]{.underline}, 534 U.S. 438, 456 (2002), CCA is not related to the
"company that opposed the investigation." CCA urges that this result
follows from [Barnhart]{.underline}. In [Barnhart]{.underline}, the
pertinent statute required the Commissioner of Social Security to assign
coal industry retirees "to a signatory operator which (or any related
person with respect to which) remains in business." [Id.]{.underline} at
450 (quoting 26 U.S.C. § 9706(a) (1974)). The signatory operator was no
longer in business, but the statute also applied to "related
person\[s\]." The issue was whether a successor in interest to the
signatory operator was a "related person" to the signatory operator. The
Court concluded that, under the statutory definition of "related
person," the successor in interest could be a related person only if the
signatory operator [was itself]{.underline} a related person.
[Id.]{.underline} at 456. The Court declined to include the signatory
operator within the meaning of "related person" on the theory that "the
signatory operator would be related to itself" and that the statute
"necessarily implies that a 'related person' is a separate entity from a
signatory operator." [Id.]{.underline}

The second interpretation is that the statute should be read to
establish two separate categories: (1) entities "acquired by a company .
. . that opposed the investigation" and (2) entities "acquired by a . .
. business that is related to a company that opposed the investigation."
In this interpretation, the "related to" language only qualifies the
word "business." Thus, the provision bars claims on behalf of a company
that was acquired by a company that opposed the investigation or,
broadly, a company acquired by any "business" related to such a company.
Under this interpretation, Congress appeared to use the term "company"
to mean the acquiring entity, whether or not it was incorporated,[^5]
and the word "business" broadly to include related entities. This broad
interpretation of the term "company" is supported by the fact that the
last sentence of section 1675c(b)(1) (under either interpretation) is
concerned only with a "company" (and not a business) that opposed the
investigation.

On its face, we think the statutory language compels neither
interpretation.[^6] However, contrary to the dissent, Diss. Op.,
[post]{.underline} at 3-5, this does not lead us immediately to step two
of the [Chevron U.S.A. Inc. v. Natural Resources Defense Council,
Inc.]{.underline}, 467 U.S. 837 (1984), analysis, that is, consideration
of an agency interpretation. Rather, we must first use all "traditional
tools of statutory construction" to determine whether "Congress had an
intention on the precise question at issue" before we consider deference
to an agency interpretation. [Id.]{.underline} at 843 n.9. "If the
intent of Congress is clear, that is the end of the matter; for the
court, as well as the agency, must give effect to the unambiguously
expressed intent of Congress." [Id.]{.underline} at 842-43; [see
also]{.underline} [Chem. Mfrs. Ass'n v. Natural Res. Def. Council,
Inc.]{.underline}, 470 U.S. 116, 125 (1985) ("\[I\]f Congress has
clearly expressed an intent contrary to that of the Agency, our duty is
to enforce the will of Congress.").

This case is unlike [Barnhart]{.underline}, where the statutory language
was "clear and unambiguous." 534 U.S. at 460. All parties here agree
that there is no legislative history that helps to resolve the ambiguity
in the statutory language. Thus, we must look beyond the statutory
language to the statute's purpose to determine its meaning. [See,
e.g.]{.underline}, [Holloway v. United States]{.underline}, 526 U.S. 1,
9 (1999) (noting that "statutory language should be interpreted
consonant with 'the provisions of the whole law, and . . . its object
and policy'" (quoting [John Hancock Mut. Life Ins. Co. v. Harris Trust
and Sav. Bank]{.underline}, 510 U.S. 86, 94-95 (1993))); [Chapman v.
Houston Welfare Rights Org.]{.underline}, 441 U.S. 600, 608 (1979) ("As
in all cases of statutory construction, our task is to interpret the
words of these statutes in light of the purposes Congress sought to
serve."); [Warner-Lambert Co. v. Apotex Corp.]{.underline}, 316 F.3d
1348, 1355 (Fed. Cir. 2003) ("When interpreting a statute, the court
will not look merely to a particular clause in which general words may
be used, but will take in connection with it the whole statute (or
statutes on the same subject) and the objects and policy of the law, as
indicated by its various provisions, and give it such a construction as
will carry into execution the will of the Legislature." (quoting
[Kokoszka v. Belford]{.underline}, 417 U.S. 642, 650 (1974))); [see
also]{.underline} [Johnson v. United States]{.underline}, 529 U.S. 694,
710 n.10 (2000) ("Our obligation is to give effect to congressional
purpose so long as the congressional language does not itself bar that
result."). Indeed, the Supreme Court has recently and unanimously held
that, where textual ambiguity exists, "we must look beyond the bare text
. . . to the context in which it was enacted and the purposes it was
designed to accomplish." [Jones v. R. R. Donnelley & Sons
Co.]{.underline}, \_\_\_ U.S. \_\_\_, \_\_\_, 124 S. Ct. 1836, 1842
(2004).

The purpose of the statute is quite clear -- to bar opposers of
antidumping investigations from securing payments either directly or
through the acquisition of supporting parties. [See]{.underline} 19
U.S.C. § 1675c(b)(1)(A) (requiring that an "affected domestic producer"
be "a petitioner or interested party in support of the petition with
respect to which an antidumping order . . . has been entered"). That
purpose can be accomplished only by adopting the second of the two
interpretations. At the same time, the appellants have been unable to
identify any plausible purpose to be served by the first interpretation.
([See]{.underline} Opening Br. for Appellant at 23 n.14 ("\[T\]he
purpose of disqualifying entities related to opposing parties, but not
the opposing parties themselves, in the CDSOA may not be readily
apparent.").) That is, the appellants have identified -- and we can
discern -- no reason why Congress would wish to bar recovery when the
otherwise qualifying entity was acquired by a party [related
to]{.underline} an opposer but to permit it when the acquisition was
made by the opposer [directly]{.underline}. [Cf.]{.underline} [F.
Hoffman-La Roche Ltd. v. Empagran S.A.]{.underline}, \_\_\_ U.S. \_\_\_,
\_\_\_; 124 S. Ct. 2359, 2367 (2004) (refusing to construe the Sherman
Act to encompass "conduct that is significantly foreign" because "\[w\]e
can find no convincing justification for the extension").

Contrary to the dissent's suggestion, we are not interpreting the
statute without the benefit of Customs' views. [See]{.underline} Diss.
Op., [post]{.underline} at 6-7. Customs addressed the question of
statutory interpretation and reached the same interpretation as we do,
albeit reaching that result by a somewhat different route:

> The plain language of the statute clearly evidences a Congressional
> intent to prevent a company, business or person who opposed an
> antidumping or countervailing duty investigation from obtaining
> benefits under the CDSOA. The express language [disqualifying even a
> company related to a company opposing an investigation]{.underline}
> serves to make clear that Congressional intent.

(J.A. at 286 (emphasis added); [see also]{.underline} J.A. at 308
("Customs maintains the view that Congress did not intend CDSOA
distributions to be made to any company that opposed the
investigation.").) Thus, we are upholding Customs' interpretation of the
statute even though we do so as a matter of statutory interpretation,
rather than [Chevron]{.underline} deference.

Accordingly, we construe the statute as barring claims on behalf of
otherwise affected domestic producers if those producers were acquired
by a company that opposed the investigation or were acquired by a
business related to a company that opposed the investigation. This
barrier exists whether the claim is made by the acquiring company on
behalf of the acquired entities or by the acquired entities themselves.
Thus, neither CCA nor the entities it acquired (Lenox and Cape Cod) are
entitled to receive payments.

# CONCLUSION

For the foregoing reasons, we affirm the decision of the Court of
International Trade.

## AFFIRMED

COSTS

No costs.

United States Court of Appeals for the Federal Circuit

03-1348

CANDLE CORPORATION OF AMERICA,

> Plaintiff-Appellant,

and

BLYTH, INC.,

> Plaintiff,

v\.

UNITED STATES INTERNATIONAL TRADE COMMISSION and

DEANNA TANNER OKUN, Chairman, United States International Trade
Commission,

> Defendants,

and

UN ITED STATES BUREAU OF CUSTOMS AND BORDER PROTECTION and

ROBERT C. BONNER, Commissioner, United States Bureau of Customs and
Border

Protection,

Defendants-Appellees,

and

CANDLE-LITE DIVISION OF LANCASTER COLONY CORPORATION,

LUMI-LITE CANDLE CO., and GENERAL WAX & CANDLE CO.,

Defendants-Appellees,

and

MUENCH-KRUEZER CANDLE COMPANY,

Defendant-Appellee.

GAJARSA, [Circuit Judge]{.underline}, dissenting.

The majority concludes that the statutory language at issue here, 19
U.S.C. § 1675c (the "Byrd Amendment"), is ambiguous. Although I agree
with the majority's conclusion regarding the ambiguity of the statutory
language, because I do not agree with the majority's disposition in
light of that conclusion, I respectfully dissent.

Section 1675c(b)(1) states that "\[c\]ompanies, 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]{.underline} shall
not be an affected domestic producer" (emphasis added). The majority
recites two possible readings of this provision. The first, advanced by
Candle Corporation of America ("CCA"), applies the "related to a company
that opposed the investigation" limitation to both "companies" and
"businesses," with the result being that only companies and businesses
that are related to a company that opposed the petition are excluded
from affected domestic producer status. CCA's interpretation thus allows
companies or businesses acquired by a company that [itself]{.underline}
opposed the petition---but is not related to a company or business that
opposed the petition---to qualify as affected domestic producers. This
interpretation allows CCA to be eligible to apply for an offset
distribution.

The second interpretation developed by the court and conceded at oral
argument as not advanced in this appeal by any of the parties applies
the "related to" language only to "businesses," thereby limiting the
effect of the above-described statutory language. Under this reading, an
acquiring "company . . . that opposed the petition"---whether or not
related to a company that opposed the petition---is excluded from
affected domestic producer status, and accordingly may not receive a
share of the offset distributions required by the Byrd Amendment. 19
U.S.C. § 1675c(a), (b)(1). Since CCA is a "company . . . that opposed
the petition," it falls within the exclusion. I agree with the majority
that both of these readings might be permissible under the plain
language of the statute, and that "the statutory language compels
neither interpretation." [See]{.underline} Maj. op. at 9. I also agree
that regulations promulgated by the United States Bureau of Customs and
Border Protection ("Customs") do not adopt either reading of the
statute.[^7]

Where I depart from the majority opinion is on my view of the proper
disposition of this case given the statute's ambiguity. After concluding
that the language of section 1675c(b)(1) is ambiguous and compels
neither of the majority's proffered interpretations, the majority seeks
out the statute's legislative policy and purpose to lay the foundation
for its own interpretation, which it adopts, and affirms the decision of
the Court of International Trade. My point of disagreement is a narrow
one and stems from what I believe is the proper relationship between the
courts and the administrative agencies that they review.

When addressing an agency decision, we indulge "a presumption that
Congress, when it left ambiguity in a statute meant for implementation
by an agency, understood that the ambiguity would be resolved, first and
foremost, by the agency, and desired the agency (rather than the courts)
to possess whatever degree of discretion the ambiguity allows." [Smiley
v. Citibank (S.D.), N.A.]{.underline}, 517 U.S. 735, 740-41 (1996)
(citing [Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc.]{.underline}, 467 U.S. 837, 843-44 (1984)). Furthermore, "whether
or not they enjoy any express delegation of authority on a particular
question, agencies charged with applying a statute necessarily make all
sorts of interpretive choices, and while not all of those choices bind
judges to follow them, they certainly may influence courts facing
questions the agencies have already answered." [United States v. Mead
Corp.]{.underline}, 533 U.S. 218, 227 (2001). The majority decision
disregards the scheme of deference dictated by these decisions and
instead purports to decipher on its own the congressional policy and
purpose, developing thereby an interpretation of the statute advanced by
none of the parties before this court. The result is that the court
imposes its own interpretation of section 1675c(b)(1) upon Customs
without any possibility of future interpretation by the agency, despite
the authority to resolve statutory ambiguities that has been delegated
to Customs by Congress. [See]{.underline} 19 U.S.C. § 1624 (2000) ("In
addition to the specific powers conferred by this chapter the Secretary
of the Treasury is authorized to make such rules and regulations as may
be necessary to carry out the provisions of this chapter.").

The government chose to defend Customs' decision in this court on the
same reasoning applied by the agency in denying CCA's application for
benefits. Customs denied the CCA's request on the basis that its
"creatively restrictive reading of the statute" was nonetheless contrary
to congressional intent. Customs did not rest its decision on any
perceived ambiguity. It is this court that now finds the statutory
language ambiguous and resolves the ambiguity without a clear
legislative record or first affording the agency an opportunity to
resolve the ambiguity itself.

The majority states that it is only pursuing the first step of
[Chevron]{.underline} in that it is using all "traditional tools of
statutory construction" to determine whether "Congress had an intention
on the precise question at issue." As the majority plainly announces,
the statutory language is ambiguous. To resolve this ambiguity, the
majority penetrates the textual ambiguity and discerns a purpose from
what [it]{.underline} believes the statute was designed to accomplish.
Unfortunately, it does not have any premise for such a determination. In
my judgment, there is no basis to decipher the congressional intent or
purpose from any source. There is no legislative history of the Byrd
Amendment on which this court can rely to discern a purpose. Moreover,
although the majority refers to a purpose in the statutory framework, it
simply quotes the language of the statute defining an affected domestic
producer, a category in which we all apparently agree that CCA does not
fall. [See]{.underline} Maj. op. at 11. Despite the litany of cases
cited by the majority describing a court's duty to "look beyond the bare
text," when I do, I see only a lack of congressional intent.
Furthermore, none of the cases cited by the majority occur in an
administrative setting. [See]{.underline} Maj. op. at 10-11 (citing
cases and quoting [Jones v. R.R. Donnelley & Sons Co.]{.underline}, 124
S. Ct. 1836, 1842 (2004)). Where an agency is involved,
[Chevron]{.underline} and its progeny are clear---ambiguities are to be
resolved by first and foremost by the agency.

The inability of the majority to identify any justification for CCA's
reading of the statute does not create a clear congressional purpose
favoring the majority's competing interpretation. Rather, it confirms
that the statute is ambiguous. The majority's citation of [F. Hoffman-La
Roche Ltd. v. Empagran S.A.]{.underline}, 124 S. Ct. 2359, \_\_ (2004),
is revealing of the fact that the majority is operating on the absence,
rather than presence, of congressional intent. Maj. op. at 11. The
majority, however, overlooks an important predicate to the language that
it quotes, which is that the Supreme Court was there relying on a canon
of statutory construction to resolve an ambiguity and found no
justification for deviating from that canon. [F. Hoffman-La
Roche]{.underline}, 124 S. Ct. at \_\_. The majority here has no similar
basis for preferring one interpretation over another, and resolves the
ambiguity as it does simply because it finds no reason not to.

Consequently, I would permit the agency to interpret the statute in the
first instance. Customs relied on its regulation rather than the text of
the Byrd Amendment in reaching its decision, both of which Customs
admits are silent regarding the facts of this case. This court now
affirms the decisions of Customs and the Court of International Trade on
a "somewhat different theory" that coincides with the reasoning in
neither forum. Maj. op. at 2. This presents additional difficulties, as
"\[w\]e are powerless to affirm an administrative action on a ground not
relied upon by the agency." [NEC Home Elecs. v. United
States]{.underline}, 54 F.3d 736, 743 (Fed. Cir. 1995) (citing
[Securities & Exch. Comm'n v. Chenery Corp.]{.underline}, 332 U.S. 194,
196 (1947)). I recognize that this court has sensibly acknowledged that
"the [Chenery]{.underline} doctrine is not applied inflexibly" and that
"the doctrine does not require a remand to the agency if it is clear
that the agency would have reached the same ultimate result had it
considered the new ground." [Fleshman v. West]{.underline}, 138 F.3d
1429, 1433 (Fed. Cir. 1998) (quotations omitted).[^8]

Where, as here, however, the exception approved of in
[Fleshman]{.underline} eliminates an agency's discretion to interpret
the statutes it is charged with administering, I would vacate the
decision of the Court of International Trade and remand the matter to
the agency to interpret the statute in the first instance. The majority
here does not simply uphold the decision of Customs, but rather discerns
the purpose of section 1675c(b)(1) by its own accord. Customs' outcome,
therefore, is not simply permissible---it is now and forever will be
mandated by the court's action, which removes the necessary flexibility
of policy interpretation that the agency may require in resolving the
ambiguity. Courts should not take it upon themselves to usurp the
administrative agency of its delegated authority as the agency is in a
better position than this court to [cognoscere causas]{.underline} and
set the appropriate policy directive. I therefore respectfully dissent.

[^1]: The Byrd Amendment provides:

    > The term "affected domestic producer" means any manufacturer,
    > producer, farmer, rancher, or worker representative (including
    > associations of such persons) that---
    >
    > \(A\) was 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, and
    >
    > \(B\) remains in operation.
    >
    > 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.

    19 U.S.C. § 1675c(b)(1).

[^2]: The statute provides:

    > The term "qualifying expenditure" means an expenditure incurred
    > after the issuance of the antidumping duty finding or order or
    > countervailing duty order in any of the following categories:
    >
    > \(A\) Manufacturing facilities.
    >
    > \(B\) Equipment.
    >
    > \(C\) Research and development.
    >
    > \(D\) Personnel training.
    >
    > \(E\) Acquisition of technology.
    >
    > \(F\) Health care benefits to employees paid for by the employer.
    >
    > \(G\) Pension benefits to employees paid for by the employer.
    >
    > \(H\) Environmental equipment, training, or technology.
    >
    > \(I\) Acquisition of raw materials and other inputs.
    >
    > \(J\) Working capital or other funds needed to maintain
    > production.

    19 U.S.C. § 1675c(b)(4).

[^3]: The regulation provides:

    > In the case of a company that has succeeded to the operations of a
    > predecessor company that appeared on the \[ITC list of affected
    > domestic producers\], 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.

    19 C.F.R. § 159.61(b)(1)(i).

[^4]: The statute provides: "The Commissioner \[of Customs\] shall
    prescribe procedures for distribution of the continued dumping or
    subsidies offset required by this section. Such distribution shall
    be made not later than 60 days after the first day of a fiscal year
    from duties assessed during the preceding fiscal year." 19 U.S.C.
    § 1675c(c).

[^5]: The term "company" may be used to mean "a corporation,
    partnership, association, joint-stock company, trust, fund, or
    organized group of persons, [whether incorporated or
    not]{.underline}." [Black's Law Dictionary]{.underline} 274 (7th ed.
    1999) (emphasis added).

[^6]: Contrary to the appellant's argument, the rules of grammar do not
    require the use of an article or a comma before the word "business"
    for the second interpretation to be correct. While the drafters'
    intent to adopt the second interpretation certainly would have been
    clear if an article or comma had been used, [see]{.underline} Gordon
    Loberger & Kate Shoup Welsh, [Webster's New World English Grammar
    Handbook]{.underline} 106, 160 (2002), the lack of an article or
    comma simply makes the clause ambiguous. It does not compel the
    first interpretation. Similarly, the inclusion of "or business"
    after the phrase "related to a company" in section 1675c(b)(1) would
    have supported the first interpretation.

[^7]: ^?^ Customs also agrees that neither the Byrd Amendment nor its
    regulations address the situation before the court.
    [See]{.underline} Letter from Michael T. Schmitz, Ass't Comm'r,
    Office of Regulations and Rulings, United States Customs Service, to
    Jay P. Urwitz, Hale and Dorr, LLP (Dec. 4 2002) (explaining that
    "\[t\]he \[Byrd Amendment\] does not address whether distributions
    may be made to successor companies" and that its "position limits
    Customs successor regulation" by "balanc\[ing\] the expressed
    remedial purpose of the statute . . . with the express language of
    the \[Byrd Amendment\] disqualifying even a company acquired by a
    company related to a company that opposed an investigation."); [see
    also]{.underline} Brief of Customs at 24 ("\[T\]his is a case where
    customs is interpreting its own regulation.").

[^8]: I suspect that the [Chenery]{.underline} difficulties associated
    with the action the Court takes today played a role in the
    government's tactical decision to defend Customs' stated reasoning
    on appeal rather than attempting to substitute a new legal theory
    for the administrative decision.