                                           Slip Op. 05-98

              UNITED STATES COURT OF INTERNATIONAL TRADE
____________________________________
                                     x
Dixon Ticonderoga Company,           :

                 Plaintiff,                    :
                                                              Court No. 04-00027
                 v.                            :              Before: Judith M. Barzilay, Judge

United States Customs and Border               :
Protection
and Robert C. Bonner,                          :

            Defendants.             :
____________________________________x

                                    MEMORANDUM ORDER

[Defendants’ USCIT R. 59 Motion for Rehearing denied.]

                                                              Decided: August 18, 2005

Gray Robinson, P.A. (A. Anthony Giovanoli), Guy S. Haggard for Plaintiff.

Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director; (Jeanne E. Davidson),
Deputy Director; (David S. Silverbrand), Trial Attorney, U.S. Department of Justice, Civil
Division, Commercial Litigation Branch; Charles Steuart, Office of Chief Counsel, United States
Customs & Border Protection, of counsel, for Defendant.

BARZILAY, JUDGE:

       On April 4, 2005, this court entered a Judgment Order granting plaintiff Dixon

Ticonderoga Co.’s (“Dixon’s”) Motion for Judgment on the Agency Record. Dixon Ticonderoga

Co. v. United States Customs and Border Protection, Slip Op. 2005-46.1 Now defendants,

United States Customs and Border Protection and Robert C. Bonner (collectively “Defendant”)

ask this court to reconsider the above-mentioned judgment and opinion, to grant a rehearing, and



       1
           Familiarity with this prior opinion is presumed.
04-00027                                                                                      Page 2


to dismiss Dixon’s cause of action pursuant to USCIT Rule 59(a)(2). After having considered

Defendant’s arguments to the contrary, the court finds no fundamental or significant mistake

resulting in manifest error. Therefore, Defendant’s motion is denied.

       Rule 59(a)(2) allows this Court to order a rehearing in an action finally determined, for

any of the reasons that United States courts have granted rehearings in suits in equity. The

granting or denying of a motion for rehearing rests within the sound discretion of the court. See

Ammex, Inc. v. United States, 201 F. Supp. 2d 1374, 1375 (CIT 2002); Mitsubishi Heavy Indus.,

Ltd. v. United States, 112 F. Supp. 2d 1170, 1171 (CIT 2000). Reconsideration is appropriate

when meant to rectify a fundamental or significant flaw in the original proceeding that results in

a manifest error. Mitsubishi, 112 F. Supp. 2d at 1171 (citations and quotations omitted).

       Defendant argues in this motion, as it did in opposition to Dixon’s Motion for Judgment

on the Agency Record, that Dixon was not substantially prejudiced by Defendant’s late published

notice. As Defendant points out, prejudice means injury to an interest that the statute, regulation,

or rule in question was designed to protect. Deft.’s R. 59 Mot. for Rehearing at 5 (citing

Intercargo Ins. Co. v. United States, 83 F.3d 391, 394 (Fed. Cir. 1996) (quotations omitted)). As

explained in the opinion, Dixon, being a domestic pencil manufacturer, had an interest in

applying for and receiving a distribution pursuant to the Continued Dumping and Subsidy Offset

Act of 2000 (“CDSOA”), also known as the Byrd Amendment. Both the CDSOA and the

Customs regulation at issue, 19 C.F.R. § 159.62(a), were designed to protect this interest.

       Furthermore, none of the cases Defendant cites in its motion shed any new light on the

matter at hand. In Cathedral Candle Co., et. al. v. United States International Trade Comm’n,
04-00027                                                                                       Page 3


et. al., 400 F.3d 1352 (Fed. Cir. 2005), the Federal Circuit considered a case where Customs

complied with 19 C.F.R. § 159.62(a) and provide timely notice. In that case Customs granted

discretion to the International Trade Commission’s (“ITC”) resolution of a conflict between the

confidentiality requirements of 19 U.S.C. § 1677f and the notice requirements of the Byrd

Amendment, 19 U.S.C. § 1675c. Therefore, the Court held that where the plaintiffs did not

waive the confidentiality they had originally opted for, the timely published notice did not violate

the Byrd Amendment when it failed to include plaintiffs on the list of affected domestic

producers.2 Cathedral Candle, 400 F.3d at 1367, 1372.

       Also distinguishable is this Court’s recent opinion in Candle Artisans, Inc. v. United

States International Trade Comm’n, et. al., 29 CIT __, 362 F. Supp. 2d 1352 (2005). Similar to

the facts of Cathedral Candle3 and in contrast to those presented in this case, Customs published

timely notice of its intent to distribute, but did not include plaintiffs’ names on the list because

they had not waived confidentiality. In both Cathedral Candle and Candle Artisans, the

plaintiffs’ inability to obtain notice was not due to any fault or omission on the part of Customs.

Rather, Customs was held to have made a reasonable interpretation of two seemingly conflicting

statutes, and its decision not to publish the names of domestic producers who had not waived

confidentiality was accorded deference by the Courts. In the present case, Customs failed to


       2
         Although not relevant to the issues at hand, integral to the Federal Circuit’s holding in
Cathedral Candle were the additional determinations that section 4 of the Administrative
Procedure Act (“APA”) was not applicable to the facts in that case, and that the ITC was not
required under section 3 of the APA to publish Federal Register notice indicating that it was only
submitting the names of those persons that indicated public support for the petition. 400 F.3d at
1369, 1371-72.
       3
           As noted by the Court in Candle Artisans, 326 F. Supp. 2d at __, n.1.
04-00027                                                                                       Page 4


abide by its own regulations by failing to provide timely notice to all affected domestic producers

of the CDSOA distribution for fiscal year 2003.

       As explained in the court’s earlier opinion, Slip Op. 2005-46, because the Customs

regulations at issue in this matter were found to be merely procedural aids, Dixon could prevail

on its claim only if it demonstrated substantial prejudice. Id. at 9 (citing Kemira Fibres Oy v.

United States, 61 F.3d 866 (Fed. Cir. 1995) (citations omitted)). Because it was one of the

petitioners in Certain Cased Pencils from the People’s Republic of China, 59 Fed. Reg. 66909

(Dec. 28, 1994), Dixon was an intended beneficiary of the CDSOA and its accompanying

regulations, including 19 C.F.R. § 159.62(a). Therefore, Dixon was substantially prejudiced by

Customs’ late published notice. Unlike the plaintiff in Intercargo Insurance Co. v. United

States, 83 F.3d 391 (1996), Dixon does not complain of a technical defect which, if disregarded,

would deprive Dixon of relief. Rather, Dixon’s interest in receiving its share of the distribution,

as an intended beneficiary of the CDSOA, was injured by Customs’ failure to provide timely

notice. Cf. Intercargo, 83 F.3d at 396 (“Prejudice means injury to an interest that the statute,

regulation or rule in question was designed to protect.”). In other words, Dixon was squarely

within the interest intended to be protected by both the statute involved and the timing

regulations implicated in this case, and was prejudiced when Customs failed to properly

administer that statute and accompanying regulation. Cf. Kemira, 61 F.3d at 875-76.

       On April 29, 2005, the parties submitted a joint status report pursuant to the court’s order

directing the parties to confer regarding a remedy and to advise the court of this proposed

remedy. In this status report, the parties indicated their agreement that, “if after all opportunities
04-00027                                                                                   Page 5


for rehearing and/or appeal have been exhausted, [this court’s April 4, 2005 opinion] is the final

court decision upon this action, Dixon would be entitled to distribution from Customs of

$618,896.03 in CDSOA funds for fiscal year 2003.” Thus, the court orders Customs to take

appropriate action to the extent authorized by law and to effect a distribution of $618,896.03 to

Dixon. Furthermore, the court notes that because the only interest available pursuant to 19

U.S.C. § 1675c(d)(3) is statutory interest charged on antidumping and countervailing duties at

liquidation, the sum to be distributed to Dixon does not include interest accrued. See 19 C.F.R. §

159.74(e). Accordingly, it is hereby

       ORDERED that defendant’s USCIT R. 59 motion for rehearing is denied; and it is further

       ORDERED that defendant will effect a distribution of $618,896.03 to plaintiff in

CDSOA funds for fiscal year 2003.




      August 18, 2005                                /s/ Judith M. Barzilay
______________________________                       _________________________________
New York, NY                                         Judith M. Barzilay, Judge
