Slip Op. 07-36 

UNITED STATES COURT OF INTERNATIONAL TRADE 

 

 Before: Jane A. Restani, Chief Judge 

 Evan J. Wallach, Judge 

 Leo M. Gordon, Judge 

 Court No. 06-00405

 

 

OPINION AND ORDER 

[Defendant-Intervenor’s Motion to dismiss denied.] 

 Dated: March 13, 2007 

 Greenberg Traurig, LLP (Jeffrey S. Neeley, David R. Amerine) for the Plaintiff 

Specialty Merchandise Corporation. 

 Peter D. Keisler, Assistant Attorney General; Jeanne E. Davidson, Director; 

Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, 

U.S. Department of Justice (David S. Silverbrand); and Office of Chief Counsel for 

Import Administration, U.S. Department of Commerce (Arthur D. Sidney), of counsel, for 

the Defendant. 

Barnes & Thornburg, LLP (Randolph J. Stayin, Karen A. McGee) for the 

Defendant-Intervenor National Candle Association. 

Gordon, Judge: Defendant-Intervenor National Candle Association (“NCA”) 

moves pursuant to USCIT R. 12(b)(5) to dismiss Plaintiff Specialty Merchandise 

Corporation’s (“SMC”) complaint challenging the United States Department of 

Commerce’s (“Commerce”) anticircumvention inquiry of the antidumping duty order on 

petroleum wax candles from China. See Later-Developed Merchandise 

Anticircumvention Inquiry of the Antidumping Duty Order on Petroleum Wax Candles 

from the People’s Republic of China, 71 Fed. Reg. 59,075 (Dep’t of Commerce 

SPECIALTY MERCHANDISE 

CORPORATION, 

 Plaintiff, 

 

 v. 

UNITED STATES, 

Defendant. 
Court No. 06-00405 Page 2 

Oct. 6, 2006) (final determination anticircumvention inquiry) (“Final Determination”). 

NCA contends that Plaintiff was not a party to the anticircumvention inquiry, and 

therefore may not challenge the Final Determination. 

The motion presents the narrow question of whether Plaintiff was a “party to the 

proceeding,” a requirement for challenging an anticircumvention determination in the 

U.S. Court of International Trade. Section 516A(a)(2)(A) and (d) of the Tariff Act 

of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(A) and (d) (2000)1

; see also 28 U.S.C. 

§ 2631(c) (2000). As discussed below, Plaintiff was a “party to the proceeding,” and 

Defendant-Intervenor’s motion to dismiss is therefore denied.

I. Background 

During the anticircumvention proceeding, Commerce issued various deadlines 

for the submission of factual information and argument. Final Determination at 59,075. 

After these deadlines passed, but before the publication of the Final Determination on 

October 6, 2006, Plaintiff filed a notice of appearance with comments. See SMC’s 

Aug. 24, 2006 Notice of Appearance and Comments on the Anticircumvention Inquiry 

(Pub. R. 1852

, Def.-Intervenor’s Mot. to Dismiss Ex. A). No party objected to SMC’s 

submission as untimely. In its submission SMC stated that it supported arguments 

made by other interested parties that the initiation of the inquiry was “inappropriate” and 

that the retroactive application of the preliminary scope determination was “illegal.” Id. 

Additionally, SMC argued that the anticircumvention statute “is completely silent as to 

 

1

All further citations to the Tariff Act of 1930 are to the relevant provision in Title 19 of 

the U.S. Code, 2000 edition. 

2

The public version of the administrative record is cited as “Pub. R.”
Court No. 06-00405 Page 3 

the suspension of liquidation and the retroactive application of circumvention 

determinations.” Id. Commerce accepted SMC’s submission and placed it upon the 

administrative record. Id. 

II. Discussion 

A civil action challenging a Commerce anticircumvention determination may be 

commenced in the Court of International Trade by an interested party who was a “party 

to the proceeding.” 19 U.S.C. § 1516a(a)(2)(A) and (d); see also 28 U.S.C. § 2631(c) 

(2000). Commerce defines a “party to the proceeding” as “any interested party that 

actively participates, through written submissions of factual information or written 

argument, in a segment of a proceeding.” 19 C.F.R. § 351.102 (2005); see also 

JCM, Ltd. v. United States, 210 F.3d 1357, 1360 (Fed. Cir. 2000). The party’s 

participation needs to reasonably convey “the separate status of a party,” Am. Grape 

Growers v. United States, 9 CIT 103, 105, 604 F. Supp. 1245, 1249 (1985), and provide 

Commerce with “notice of a party’s concerns.” Encon Indus., Inc. v. United States, 

18 CIT 867, 868 (1994). 

Defendant-Intervenor argues that SMC’s submission fell “short of showing that 

SMC meaningfully participated in the Anticircumvention Inquiry” and was “untimely.” 

(Def.-Intervenor’s Br. in Supp. of Mot. to Dismiss at 3, 4 (emphasis removed).) 

In Commerce’s view, however, “SMC participated in the underlying administrative 

proceeding by submitting a written submission containing argument.” (Def.’s Resp. in 

Opp’n. to Mot. to Dismiss at 6.) Indeed, SMC’s submission notified all parties of its 

appearance and informed Commerce that SMC was joining arguments made by other 
Court No. 06-00405 Page 4 

respondents in the anticircumvention inquiry. Thus, Commerce was satisfied that SMC 

had participated in the proceeding to the extent necessary to reasonably convey notice 

of SMC’s “separate status [as] a party.” Am. Grape Growers, 9 CIT at 105, 

604 F. Supp. at 1249. 

As for the timeliness of Plaintiff’s submission, “[I]t is always within the discretion 

of . . . an administrative agency to relax or modify its procedural rules adopted for the 

orderly transaction of business before it when in a given case the ends of justice require 

it. The action of [an agency] in such a case is not reviewable except upon a showing of 

substantial prejudice to the complaining party.” Am. Farm Lines v. Black Ball Freight 

Serv., 397 U.S. 532, 539 (1970); see also Dixon Ticonderoga Co. v. United States, 

468 F.3d 1353, 1355 (Fed. Cir. 2006), and PAM S.p.A. v. United States, 463 F.3d 1345, 

1348 (Fed. Cir. 2006). Defendant-Intervenor argues that it was within Commerce’s 

discretion to “refuse to accept late submissions.” (Def.-Intervenor’s Mot. to Dismiss 

at 4-5.) Commerce, however, exercised its discretion to accept, rather than reject, 

SMC’s submission. That action “is not reviewable except upon a showing of substantial 

prejudice to the complaining party.” Am. Farm Lines, 397 U.S. at 539. DefendantIntervenor does not argue that it suffered substantial prejudice, and it would be difficult 

to make such a showing. Accordingly, Plaintiff’s submission was properly on the 

administrative record. It identified Plaintiff as a separate party and presented Plaintiff’s 

arguments about the anticircumvention proceeding. Plaintiff was therefore a “party to 

the proceeding.” 
Court No. 06-00405 Page 5 

III. Conclusion 

 Plaintiff’s submission was properly on the administrative record, and thus Plaintiff 

was a “party to the proceeding.“ Accordingly, it is hereby ordered that DefendantIntervenor’s motion to dismiss is denied. 

 

 /s/ Leo M. Gordon 

 Judge Leo M. Gordon 

Dated: March 13, 2007 

 New York, New York