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 Li tigation Branch, Civil Division, U.S. Department of Just ice (David S. Silverbrand ); and Office of Chief Counsel for Import Administration, U.S. Departm ent of Commerce (Arthur D. Sidney ), of counsel, for the Defendant. Barnes & Thornburg, LLP (Randolph J. Stayin , Karen A. McGee ) for the Defendant-Intervenor Nationa l 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 challeng ing the United States Department of Commerce’s (“Commerce”) anticircumvention inqu iry of the antidumping duty order on petroleum wax candles from China. See Later-Developed Merchandise Anticircumvention Inquiry of the Antidump ing 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 anticir cumvention inquiry) (“Final Determination ”).

NCA contends that Plaintiff was not a party to the anti circumvention inquiry, and therefore may not chall enge 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, Plainti ff 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 informa tion 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 not ice of appearance wit h comments. See SMC’s Aug. 24, 2006 Notice of Ap pearance and Comments on the Anticircumvention Inquiry (Pub. R. 185 2 , Def.-Intervenor’s Mot. to Dismiss Ex. A). No party objected to SMC’s submission as untimely. In its submissi on SMC stated that it supported arguments made by other interested parties that the init iation of the inquiry was “inappropriate” and that the retroactive applicati on of the preliminary scope det ermination was “illegal.” Id. Additionally, SMC argued that the anticircumvent ion statute “is completely silent as to

1 All further citations to the Tari ff Act of 1930 are to the relev ant provision in Title 19 of the U.S. Code, 2000 edition.

2 The public version of the administrat ive record is cited as “Pub. R.”Court No. 06-00405 Page 3 the suspension of liquidation and the retr oactive application of circumvention

determinations.” Id. Commerce accepted SMC’s subm ission 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 Tr ade 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 pr oceeding” as “any interested party that actively participates, thr ough written submissions of fa ctual 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 reasonabl y convey “the separate stat us 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 s ubmission fell “short of showing that SMC meaningfully participated in the Anti circumvention 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 partici pated 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, SM C’s submission notified all parties of its appearance and informed Commerce that SMC was joining arguments made by otherCourt No. 06-00405 Page 4 respondents in the anticircumvention inquiry. Thus, Commerce was satisfied that SMC had participated in the proceedi ng to the extent necessary to reasonably convey notice of SMC’s “separate st atus [as] a party.” Am. Grape Growers , 9 CIT at 105, 604 F. Supp. at 1249.

As for the timeliness of Plaintiff’s subm ission, “[I]t is always within the discretion of . . . an administrative agency to relax or modify its pr ocedural rules adopted for the orderly transaction of business be fore it when in a given case the ends of justice require it. The action of [an agency] in such a case is not reviewable ex cept upon a showing of substantial prejudice to the complaining pa rty.” 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 submi ssions.” (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 revi ewable except upon a showing of substantial prejudice to the complain ing party.” Am. Farm Lines , 397 U.S. at 539. DefendantIntervenor does not argue that it suffered substantial prejudi ce, and it would be difficult to make such a showing. Accordingly, Plaintiff’s submissi on was properly on the

administrative record. It identified Plaintiff as a separate party and presented Plaintiff’s arguments about the anticircumvent ion proceeding. Plaintiff wa s 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.“ Accordi ngly, it is hereby or dered that DefendantIntervenor’s motion to dismiss is denied.

/s/ Leo M. Gordon Judge Leo M. Gordon

Dated: March 13, 2007 New York, New York