Intellectual Property Law

New Matter SPRING 2018, Volume 43, Number 1

Case Comments

Lowell Anderson

Stetina Brunda Garred & Brucker


"The question presented is—can an agency regulation, previously adopted by formal notice-and-comment rulemaking procedure pursuant to the APA, be amended by a guidance document that is not so enacted?" The answer here was no, because the regulation was not ambiguous. An ITC regulation issued after notice-and-comment allowed an extension of a 90-day window within which to withdraw a request for administrative review of an antidumping order. The regulation was not ambiguous and granted the Secretary wide discretion regarding facts and circumstances presented and to apply a reasonableness test in deciding whether to extend the deadline. A 2011 guidance document issued without notice and comment required "extraordinary circumstances" to extend the deadline and represented an "incompatible departure from the clear meaning of the regulation." Rewriting the non-ambiguous regulation cannot be done under the guise of interpreting a regulation. Notice and comment rulemaking was required to rewrite the non-ambiguous regulation. The CIT requirement that the Secretary of Commerce apply the prior meaning of the regulation, was affirmed. Glycine & More, Inc. v. U.S., 880 F.3d 1335 (Fed. Cir. 2018).

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