Full opinion text
Opinion AQUILINO, Judge: The background of this case has been set forth in Judge Carman’s opinion, 9 CIT ---, Slip Op. 85-98 (Sept. 20, 1985), as well as in opinions of this court deciding various motions, and will be discussed hereinafter only as it relates to necessary findings of fact or conclusions of law. The plaintiffs and the defendants specify the issues of law essentially as (1) whether the U.S. Customs Service had authority to permit importation of fuel ethanol from Brazil after August 2, 1985 without payment of the full duties prescribed in the Tariff Schedules of the United States and (2) whether Customs Service rulings permitting such importation were arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law within the meaning of the Administrative Procedure Act, 5 U.S.C. § 706(1)(A). I The parties also agree that the actions of the defendants complained of are to be measured by the contents of the administrative record. However, the parties do not concur as to what that record entails. Their disagreement stems from defendants’ failure to comply with the mandate of 28 U.S.C. § 2635(d)(1), which is: In any other civil action in the Court of International Trade in which judicial review is to proceed upon the basis of the record made before an agency, the agency shall, within forty days or within such other period of time as the court may specify, after the date of service of the summons and complaint upon the agency, transmit to the clerk of the court, as prescribed by its rules— (A) a copy of the contested determination and the findings or report upon which such determination was based; (B) a copy of any reported hearings or conferences conducted by the agency; and (C) any documents, comments, or other papers filed by the public, interested parties, or governments with respect to the agency’s action. The summons and complaint were served on August 29, 1985. In the absence of the record (or any application to extend the time for the filing thereof), this court in Slip Op. 85-105 granted plaintiffs’ motion for certain discovery of the defendant officials on the authority of Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971), Texas Steel Company v. Donovan, 93 F.R.D. 619 (N.D.Tex.1982), Exxon Corporation v. Department of Energy, 91 F.R.D. 26, 32-46 (N.D.Tex.1981), Quincy Oil, Inc. v. Federal Energy Administration, 468 F.Supp. 383 (D.Mass.1979), and Gulf Oil Corporation v. Schlesinger, 465 F.Supp. 913, 916 (E.D.Pa.1979). That discovery included production of documents, responses to interrogatories and presentment for depositions of Deputy Director John T. Roth and Director Harvey Brent Fox of the Classification and Value Division of the Customs Service. The court scheduled trial of any outstanding issues of fact. Thereafter, counsel for the defendants filed with the Clerk documents claimed to comprise the administrative record. They also interposed on the eve of trial a motion for judgment on that record pursuant to CIT Rule 56.1 and moved for a stay until resolution of their dispositive motion. The court denied a stay. The plaintiffs moved to supplement the record with documents, mostly obtained during discovery, and with Roth and Fox deposition testimony; intervenor-defendant RAJ Chemicals, Inc. [hereinafter referred to as “RAJ”] submitted an in limine motion to limit the scope of review to the administrative record. That record was submitted by counsel for the defendants under cover of an affidavit of Mr. Roth wherein he is characterized as having been “involved directly in the decisions” at issue in this case. The affidavit incorporates by reference and attaches a list of documents contained in defendants’ response to plaintiffs’ request to produce. The list has been marked to indicate which papers produced during discovery are not considered by the defendants to be part of their record and therefore were not filed. Of those papers, plaintiffs’ motion to supplement sought admission into evidence of Nos. 12, 59, 60, 71, 79, 105, 107, 116, 117, 120, 122, 123, 124, 125 and 127, as well as three documents not on the government list. The motion stated that the Roth affidavit excludes a number of ... documents that were before the agency at the time of the agency decisions, some of which documents were filed with the agency by the public or interested parties and some of which were prepared by the agency and help explain the decisionmaking process____ Since these documents come within the terms of Rule 72(a) and 28 U.S.C. § 2635, they should be included in the Administrative Record. In addition to 28 U.S.C. § 2635 quoted above, CIT Rule 72(a) provides that within 40 days after the service of the summons and complaint upon the agency, the agency shall file with the clerk of the court the items specified in paragraphs (1), (2) and (3) of this subdivision (a), if they exist, and the certified list specified in paragraph (4) of this subdivision (a), as part of the official record of the civil action. (1) A copy of the contested determination and the findings or report upon which such determination was based. (2) A copy of any reported hearings or conferences conducted by the agency. (3) Any documents, comments, or other papers filed by the public, interested parties, or governments with respect to the agency’s action. The agency shall identify and file under seal any document, comment, or other information obtained on a confidential basis, including a nonconfidential description of the nature of such confidential document, comment or information. (4) A certified list of all items specified in paragraphs (1), (2) and (3) of this subdivision (a). For his part, Mr. Roth makes the point several times in his affidavit that he “expanded” paragraph (1) of this rule to supply certain documents as part of the record and that he also included other documents which do “not come within the scope of Rule 72(a)(1), (2) or (3).” In view of this attitude, and of the dictates of the above-quoted rules of law, it is difficult to discern why a number of documents discovered by the plaintiffs and proffered to supplement the record were not included in the first place. For example, document 71 is a request dated June 27, 1985 for a ruling by the Customs Service as to the duty on fuel ethanol proposed to be imported from Brazil by Citicorp International Trading Company, Inc., and document 79 is a reply thereto on July 15, 1985. Documents 122, 123, 124 and 125 are requests in May and June 1985 for Customs Service rulings on proposed importations of fuel ethanol by RAJ, Valley Green International Trading Corporation and Certified Oil Company. Exhibit 19 is a letter dated July 18, 1985 from RAJ’s counsel to Mr. Fox contending that the Service’s rulings underlying this case “represent a clear and cogent interpretation of the relevant TSUS items and should not be revoked or modified”. On the other hand, plaintiffs’ position is much less tenable on other documents, e.g., No. 12 (complaining ex post facto about the ruling revocations through ex parte procedures), No. 105 (Customs Service news bulletins after the fact) and Nos. 107 and 116 (attempts by Customs to explain its actions to Senator Robert Dole and then Secretary of Agriculture John R. Block, respectively). Notwithstanding the varying degrees of apparent relevance of the foregoing documents, they are not part of the administrative record according to the Roth affidavit, i.e., they were not before the decision-maker at the time of decision. In the face of such a certification, the court is not at liberty to hold otherwise simply on the grounds of production during discovery and relevance, which is all the plaintiffs show. See generally San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287, 1323-29 (D.C.Cir.1984), vacated in part on another ground on reh’g en banc, 760 F.2d 1320 (D.C.Cir.1985); Star-Kist Foods, Inc. v. United States, 8 CIT 305 (1984). The court therefore denied plaintiffs’ motion as to the documents, and, with the limited exception of Exhibit 2, none are relied on hereinafter. The Administrative Procedure Act and 28 U.S.C. § 2640(d) contemplate the availability of a complete record. However, no record was filed in a timely manner herein, thereby necessitating the independent discovery, which itself gave rise to the format, if not the contents, of the decisionmaker’s certification. His affidavit admits that there are no reported hearings or conferences conducted by the agency within the meaning of 28 U.S.C. § 2635(d)(1)(B) and CIT Rule 72(a)(2). Furthermore, Mr. Roth’s attempts to “expand” the record notwithstanding, the court is unable to conclude after careful review that it contains either findings or a report of the kind contemplated by subparagraphs (A) and (1) of the foregoing rules as a basis for the administrative actions contested herein. It has been held that hearings and formal findings are not always necessary to make an administrative record whole. E.g., Camp v. Pitts, 411 U.S. 138, 140-41, 93 S.Ct. 1241, 1243, 36 L.Ed.2d 106 (1973) (interpreting the National Bank Act, 12 U.S.C. § 26); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. at 409, 91 S.Ct. at 820 (interpreting the Department of Transportation Act, 49 U.S.C. § 1653(f), and the Federal-Aid Highway Act of 1968, 23 U.S.C. § 138). The Supreme Court recently stated in Florida Power & Light Co. v. Lorion: If the record before the agency does not support the agency action, if the agency has not considered all relevant factors, or if the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation. Of course, at the time of plaintiffs’ motion to supplement, the court was not in a position to determine the adequacy of the administrative record in view of its last-minute filing along with defendants’ motion for judgment thereon. Moreover, contrary to an earlier suggestion by the court that liquidation be suspended pending expedited resolution of the issues raised, the defendants (according to letters from their counsel dated November 27 and December 23, 1985) had liquidated two of the contested ethanol entries on November 15 and December 20, 1985, respectively. These maneuvers effectively have made remand upon any determination of record inadequacy inappropriate. As indicated above, in the absence of the record, the court had granted leave to take the depositions) of the decisionmaker(s) on the authority of Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. at 420, 91 S.Ct. at 825 (Where there are no formal findings, “it may be that the only way there can be effective judicial review is by examining the decisionmakers themselves”). See Public Power Council v. Johnson, 674 F.2d 791, 793-94 (9th Cir.1982); Environmental Defense Fund, Inc. v. Costle, 657 F.2d 275, 285 (D.C.Cir.1981); Hurst v. United States Postal Service, 586 F.2d 1197, 1200 n. 6 (8th Cir.1978). As the Supreme Court stated in Camp v. Pitts, 411 U.S. at 142-43, 93 S.Ct. at 1244: If ... there was such a failure to explain administrative action as to frustrate effective judicial review, the remedy was ... to obtain from the agency, either through affidavits or testimony, such additional explanation of the reasons for the agency decision as may prove necessary. Having granted this remedy under the rare circumstances indicated, it would indeed be anomalous and not in the interests of effective judicial review for the court now not to receive and consider the deposition testimony of the decisionmakers along with the documents which they thereafter claim constitute their record. II From the outset, the defendants challenged the standing of the plaintiffs to prosecute this case. That challenge was overruled by Judge Carman during hearing and determination of plaintiffs’ original application for a preliminary injunction. See Slip Op. 85-98 at 4. Then, on further consideration of defendants’ motion to dismiss the complaint, joined in by RAJ, this court, taking the allegations of the complaint as true for purposes of deciding the motion, denied dismissal on the ground of lack of standing. See Slip Op. 85-119, 623 F.Supp. at 1264-66. Finally, the trial itself focused on this issue. The intervenor-defendants argue vigorously in their post-trial briefs that the plaintiffs failed to carry their burden of proof on the question. This position is not well-taken, however, as to two of the plaintiffs. A. Standing of Plaintiff Archer Daniels Midland Company (“ADM”) ADM, which is the largest domestic producer of anhydrous ethyl alcohol or ethanol, operates plants in Peoria and Decatur, Illinois and Cedar Rapids and Clinton, Iowa. See Tr. at 55. Almost all of this product is derived from com, with ADM attempting to sell the resultant fuel ethanol to petroleum marketers across the United States — from Minnesota to Florida to California. A document in the administrative record herein describes the status of fuel ethanol in this country as follows: United States fuel ethanol sales find their modern origins in the oil supply disruptions and price escalations associated with the Arab oil crisis of the 1970’s and the tax subsidies (both Federal and State) that began in 1978. Fuel ethanol and certain other gasoline extenders were promoted to lessen the likelihood that United States consumers would be held hostage in the future. Although OPEC’s threat has subsided and the rate of growth of gasoline demand has lessened, fuel ethanol demand has been sustained in the 1980’s, and likely in the future, by domestic rather than foreign policy. The adoption of the catalytic converter in the Clean Air Act of 1970 effectively required that new automobiles sold in the United States burn unleaded gasoline. This resulted in both increased demand for such gasoline and for sources of non-lead octane enhancers. Fuel ethanol, in addition to being a gasoline extender, is a significant source of octane. Fuel ethanol supplies were encouraged by tax credits granted under the Windfall Profits Tax legislation of 1980. Thus, through public policy affecting both the demand side and the supply side, U.S. fuel ethanol sales (U.S. apparent consumption) have grown from under 10 million gallons in 1978 to over 531 million gallons per year in 1984 (of which 430 million were produced domestically). Continued growth in U.S. sales has been further assured by recent EPA rulings that require the lowering of the lead content of leaded gasoline production from 1.1 grams per gallon (gpg) to 0.5 gpg by July 1, 1985 and to 0.1 gpg by January, 1986. Based on the most recent estimates, that nevertheless predates [sic] the EPA’s lead reduction edict, fuel ethanol sales are expected to rise by 15 percent for the year 1986 to 678 million gallons. For years, there has been analysis of motorfuel use in the United States on a regional or PADD (“Petroleum Administration for Defense District”) basis. Florida, for example, is in PADD-I, which experienced a 93 percent increase in fuel ethanol sales from January 1984 to January 1985. California, which experienced “sharp declines” in ethanol sales for the same period , is part of PADD-V. For its part, ADM’s sales in Florida for the first half of 1985 “averaged around 3 million gallons a month.” Sales for the second half of last year declined markedly. More specifically, Citgo Petroleum Corporation was an important customer of ADM during the first half of 1985 in Florida and in other states. Indeed, ADM maintains a terminal for distribution of ethanol to Florida (and elsewhere) at Avondale, Louisiana. ADM’s subsidiary American River Transportation Company chartered a large, oceangoing barge with a capacity of approximately 55,000 barrels at a rate of $4,200.00 per day “to improve [ADM’s] service to [its] Florida customers” , including Citgo, starting in April 1985. Nevertheless, soon thereafter the barge was subchartered because ADM “couldn’t get consistent business” for it in Florida. ADM’s vice-president of marketing, Edward A. Harjehausen, testified as follows as to the company’s loss of business from Citgo: Q. Did you sell product to Citgo after the month of May? A. No, we didn’t. Q. Did you make effort to sell them product after the month of May? A. Yes, we did. Q. In what months did you make efforts to sell the product for use in Florida? A. We offered to sell them product in June, July and in August. Q. And did you sell them product? A. No, we didn’t sell them anything. Q. Did you have an understanding as to why not? A. Well, I am not sure why not. There was an indication that our pricing wasn’t attractive. There was an indication that he didn’t really need any. I cannot honestly say we pinned down a specific reason why. Q. Did you quote a price? A. Yes. Q. Was the price different in any material respect from the price that you had been quoting in the previous months? A. No. Q. There was a change in the tax incentive in July in Florida, isn’t that correct? A. Yes there was. Q. Did you change your price as a result of that change in the tax incentive? A. No. We felt that the ethanol sold in the Florida market prior to the tax change was undervalued, and that when the tax change came into play, we didn’t feel that the overall economics warranted a price change, so we made no price change. Q. Did the change in the Florida tax incentive change your desire to sell product in the State of Florida? A. No. Q. Did it change the volume that you wanted to sell or try to sell or desire to sell in Florida? A. No. Q. Did it change your price? A. No. This testimony was adduced in rebuttal to that of Citicorp’s expert witness, who sought to analyze the economics of ADM’s loss in Florida of some 1.5 million gallons of ethanol sales per month during the last half of 1985. ADM had made a “conscious decision to sell less product in the Florida market” because it “did not want to run into head-to-head competition with ethanol-toluene blends.” In essence, this witness, John G. Reilly, concluded that ADM’s decision was “economically justifiable” and “rational”. He sought to support this conclusion by projecting the profitability of a diversion of 1.5 million gallons of ethanol per month from Florida to Minnesota, Illinois and Kansas. However, Mr. Reilly did not know the average “net-back” to ADM from ethanol sales in Florida or in the other three states. See Tr. at 158. He admitted that whatever price differentials may have existed between the two areas had not “triggered any action” on ADM’s part to remove product from Florida at least up until June 1985. Mr. Reilly agreed that a basic economic principle or truism operating herein is that more supply in a given market will result in downward pressure on pricing, and he also was aware that Citgo had purchased approximately 18.5 million gallons of fuel ethanol from Southern Missouri Oil Company at a price substantially below that of ADM. Finally, Mr. Reilly, who testified that for several months he had been conducting a study in connection with the ITC injury investigation of fuel ethanol from Brazil, conceded an awareness of continuing ADM sales in Florida, albeit not to its erstwhile most important customer, Cit-go. See id. at 188. In the face of such evidence of loss of business in the largest market for gasohol, the intervenor-defendants cling to their position that ADM has failed to demonstrate that it has standing in this case because it has failed to demonstrate that it has been “injured in fact” by the Service’s decision to grandfather a limited amount of mixtures. In Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 3325, 82 L.Ed.2d 556 (1984), the Supreme Court stated that the constitutional component of standing doctrine incorporates concepts concededly not susceptible of precise definition. The injury alleged must be, for example, “ ‘distinct and palpable,’ ” Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 100 [99 S.Ct. 1601, 1608, 60 L.Ed.2d 66] (1979) (quoting Warth v. Seldin, supra [422 U.S. 490], at 501 [95 S.Ct. 2197 at 2206, 45 L.Ed.2d 343 (1975) ]), and not “abstract” or “conjectural” or “hypothetical,” City of Los Angeles v. Lyons, 461 U.S. 95, 101-02 [103 S.Ct. 1660, 1665, 75 L.Ed.2d 675] (1983); O’Shea v. Littleton, 414 U.S. 488, 494 [94 S.Ct. 669, 675, 38 L.Ed.2d 674] (1974). The injury must be “fairly” traceable to the challenged action, and relief from the injury must be “likely” to follow from a favorable decision. See Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. [26], at 38, 41 [96 S.Ct. 1917, at 1924, 1925, 48 L.Ed.2d 450 (1976)]. These terms cannot be defined so as to make application of the constitutional standing requirement a mechanical exercise. Years earlier, a government claim of lack of standing on the part of Students Challenging Regulatory Agency Procedure, suing under the APA, 5 U.S.C. § 702, to enjoin ICC orders permitting railroad rate increases had been rejected by the Court as follows: The Government urges us to limit standing to those who have been “significantly” affected by agency action. But, even if we could begin to define what such a test would mean, we think it fundamentally misconceived. “Injury in fact” reflects the statutory requirement that a person be “adversely affected” or “aggrieved,” and it serves to distinguish a person with a direct stake in the outcome of a litigation — even though small — from a person with a mere interest in the problem. We have allowed important interests to be vindicated by plaintiffs with no more at stake in the outcome of an action than a fraction of a vote, see Baker v. Carr, 369 U.S. 186 [82 S.Ct. 691, 7 L.Ed.2d 663 (1962)]; a $5 fine and costs, see McGowan v. Maryland, 366 U.S. 420 [81 S.Ct. 1101, 6 L.Ed.2d 393 (1961)]; and a $1.50 poll tax, Harper v. Virginia Bd. of Elections, 383 U.S. 663 [86 S.Ct. 1079, 16 L.Ed.2d 169 (1966)]. While these cases were not dealing specifically with § 10 of the APA, we see no reason to adopt a more restrictive interpretation of “adversely affected” or “aggrieved.” As Professor Davis has put it: “The basic idea that comes out in numerous cases is that an identifiable trifle is enough for standing to fight out a question of principle; the trifle is the basis for standing and the principle supplies the motivation.” Davis, Standing: Taxpayers and Others, 35 U.Chi.L.Rev. 601, 613. See also K. Davis, Administrative Law Treatise §§ 22.-09-5, 22.09-6 (Supp.1970). RAJ’s emphasis on ADM’s size and market share is misplaced, just as is Citicorp’s theory that ADM profited by determining to sell elsewhere the product it could not market in Florida. Indeed, as shown in the analysis of the ethanol market in California infra, ADM’s size and concomitant ability to deliver its product anywhere in the United States support, rather than undermine, its standing. As for the ADM sales in Minnesota and elsewhere in PADD-II, plaintiffs’ expert witness testified: My opinion is that the facts presented today by Mr. Reilly have no bearing on whether or not there was harm to ADM as a result of an influx of Brazilian Ethanol into Florida. Tr. at 215. Further: There is no question in economic theory or in what evidence I have seen admitted that there was harmful effect because of the influx of Brazilian ethanol into the Florida market on ADM and other marketers in that area. Id. at 216. * * * * * * Whatever the conditions are in Florida, if you bring in additional supply, whatever they were before, if an additional supply comes in, standard economic analysis tells you the price of ethanol will fall____ Anybody in Florida holding ethanol at the time of the increased availability and the subsequent reduction of price will suffer harm. Id. at 217. The court agrees with this analysis. The record herein amply shows, and the court so finds, that ADM suffered injury in the Florida market sufficient to prosecute this case to judgment. The test, as the Supreme Court indicated in Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982), is the existence of “an injury of any kind, economic or otherwise”. 454 U.S. at 486, 102 S.Ct. at 766 (emphasis in original). If economics is “an inexact science in which emotions play a big role”, then a loss of good will in Florida might alone be enough to satisfy the injury-of-any-kind test. But much more has been proven here. In addition to the loss of the 1.5 million gallons of business a month discussed above, the evidence also shows, and the court finds, that ADM ended 1985 with higher inventories of ethanol and fewer customers. The intervenor-defendants emphasize the deposition testimony, read into the record at trial, of the president of The Ethanol Corporation, James Bruce Smith, that the fuel ethanol market “had already been slaughtered in Florida before ET got there.” He attributed this to three factors — increased competition, bad publicity, and the reduced state tax exemption, with the competition characterized as the biggest factor. See Tr. at 296-98. Indeed, on August 5, 1983, the Caribbean Basin Economic Recovery Act, 19 U.S.C. § 2701 et seq., became law. Section 2701 empowers the President to “proclaim duty-free treatment for all eligible articles from any beneficiary country” in that geographic region. Cf. 19 U.S.C. § 2702(b). Apparently pursuant to this authority, Customs has twice ruled that fuel ethanol from the area can enter this country, including Florida, duty free. In any event, Mr. Smith testified that a principal competitor was marketing ethanol which had entered entirely duty free, as well as at the five percent ad valorem rate at issue herein. Cf. Tr. at 298-99. In other words, the biggest cause of the “slaughter” of the Florida market was fuel ethanol not subjected to the surcharge (now 60 cents) prescribed by item 901.50, TSUS. The defendants and RAJ argued in support of their original motions to dismiss that this case was moot, and intervenor-defendants’ position now is also based on timing. That is, even if the determinations of the Customs Service to permit entry of Caribbean and Brazilian fuel ethanol without payment of the surcharge killed the market for the domestic product in Florida, that destruction had occurred prior to the Service’s August actions complained of herein. This position has some merit, but not enough to justify the relief requested by the defense because the court finds that the harm to ADM in Florida, which began before August 1985, has continued well beyond that time. For example, Citgo’s manager of special fuels estimated at trial that he had enough of the Brazilian product to satisfy his company’s entire need for fuel ethanol in Florida for a number of months. See Tr. at 319. In fact, the residue of the two Southern Missouri shipments has been stored in Louisiana, with Citgo using the same oceangoing barge earlier chartered and then released by ADM for the transport of this Brazilian alcohol to Florida. Furthermore, the April 10,1986 letter from defendants’ counsel indicates that the duties on those two entries, as well as on the once-suspended Citicorp entries, have yet to be liquidated. In denying the motions to dismiss on the ground of mootness in Slip Op. 85-119, the court, without the benefit of a timely-filed administrative record or the evidence thereafter adduced at trial, relied on the “capable-of-repetition, yet-evading-review” doctrine as set forth in Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350 (1975), and other cases. The first requisite element had already been met by the date of that opinion, to wit, the challenged action of the Customs Service was too short in its duration (90 days) to be fully litigated prior to its expiration. With regard to the second requirement (existence of “a reasonable expectation that the same complaining party would be subjected to the same action again”), the court was unable to conclude then that such an expectation was out of the question. Having now reviewed the agency record, as well as the evidence on plaintiffs’ standing, the court concludes not only that such a reasonable expectation continues to exist but also that there has been no abatement in the controversies between the plaintiffs and defendants over the Customs Service’s authority not to liquidate any unliquidated fuel ethanol entries herein at the rate prescribed by item 901.50, TSUS and between the plaintiffs and intervenor-defendants as to the importers’ obligations to remit the unpaid duties. As shown in Slip Op. 85-119, 623 F.Supp. at 1270, RAJ imported some 6.03 million gallons of fuel ethanol into the California market in September 1985. Its counsel characterizes ADM’s claim of injury in that market as a result of this shipment as “pure nonsense” on the ground that “ADM abandoned the California market in May 1985”. This characterization misses the mark, however. The evidence shows, and the court finds, that ADM sold sizeable quantities of fuel ethanol in California in April and May 1985. See Tr. at 62. ADM sold additional product in California in December 1985. See id. ADM’s vice-president of marketing testified to continuing “talk ... to customers around the country”, one of which had been RAJ’s September California customer, Beacon Oil Company, and he testified at trial that ADM’s sales efforts were not limited to any particular geographic area of the United States. See Tr. at 55. In short, the court finds that ADM did not “abandon” the California market in 1985, notwithstanding the “sharp declines” in overall ethanol sales at the start of that year noted in the RAJ record document quoted above, page 931, nor does the record support a finding that ADM was incapable of delivering product to Beacon in September 1985. What the record does show is that RAJ’s sale price to Beacon then was significantly lower than ADM’s sale prices both before and after September to its other California customer, which itself was the recipient of a RAJ commission on the sale to Beacon. See id. at 132. To imply that this price differential, based in part on the contested 5% ad valorem duty, could not and did not harm ADM in such a way as to confer standing to prosecute this case is to turn both economics and the law askance. B. Standing of Plaintiff A.E. Staley The defense claims of lack of standing on the part of plaintiff A.E. Staley are also unpersuasive. This company produces annually millions of gallons of fuel ethanol and attempts to market its product, as well as that acquired from others, in PADD-I, including Florida and North Carolina. Staley’s vice-president and general manager of its ethanol business unit, W. Robert Schwandt, testified, and this court finds, that entry of fuel ethanol into PADD-I in 1985 without payment of the duty prescribed by item 901.50, TSUS resulted in an absolute loss of business on the part of the company. See Sept. 13 Tr., p. 85. See also id. at 87. Indeed, in North Carolina, Staley’s sales dropped by more than 90 percent from June to July, and they have remained at a low level since then due to an inability to compete with “non-duty paid alcohol”. The company’s offer price in that state during the late autumn, 1985 was some 30 cents per gallon higher than that offered by others. Staley considers Florida to be “very important”. Schwandt Deposition, p. 77. In June-July 1985, its sales of fuel ethanol there exceeded a million gallons. See id. at 75, 77. By the time of the trial, monthly sales in that state had also suffered “severe deterioration” due to “much lower price elsewhere.” Tr. at 45. As with ADM supra, the intervenor-defendants argue that Staley’s lost business is not sufficient to confer standing. Both RAJ and Citicorp contend again that whatever harm Staley suffered in 1985 occurred prior to the “grandfathered imports in September and October”. Reply Brief of Citicorp, p. 26. While the court agrees that the harm to Staley began before those particular entries, the court also finds that those Citicorp entries into PADD-I added to that harm thereafter. Not only had Staley’s sales in North Carolina fallen towards zero by the time trial began in December, but Mr. Schwandt earlier had described one aspect of this harm as follows: Q. ... Does the importation of ethanol toluene blends into PAD [sic ] 1 constitute a viable threat of serious harm to A.E. Staley that could not be undone? A. Yes Judge Carman: How? [A] It has already specifically caused us to lose business and the margin attached to that business. We can’t recover that. Furthermore, it has raised a question of credibility in the minds of our customers to what is the real cost and value of this product. So, when we go back, if we get an opportunity to go back, our job will be more difficult. Judge Carman: So, its [sic] a potential of loss of goodwill with customers and the loss of revenue that gives you the irreparable harm? [A] Yes. As indicated in Section A above, such a negative turning of customers might alone be enough to satisfy the standing standard enunciated in Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. at 486, 102 S.Ct. at 766. The intervenor-defendants also point to the fact that Staley’s manufacture of fuel ethanol has not been diminished. See, e.g., Tr. at 46. Indeed, the evidence indicates injury to the “merchandise side” of the business. Id. That is, the company’s lost sales have been of product produced by others (and sought to be marketed by Staley) rather than by its own Tennessee plant. RAJ’s argument, for example, is that the interest asserted by Staley in this litigation — that of a merchandiser of ethanol from foreign and domestic sources — is not within the zone of interest protected or regulated by the relevant statute____ For that reason alone, Staley does not have standing to pursue this action and its claims for relief should be denied. The relevant statute implied is item 901.-50, TSUS. The brief of Citgo, as amicus curiae, argues at page 9 that this tariff was not designed to protect the domestic ethanol industry, that is, “[i]t is a revenue measure pure and simple.” Id., p. 8. RAJ’s Post-Trial Brief, on the other hand, states (at pages 32-33): The additional duty in item 901.50 TSUS offsets certain tax benefits that accrue from the use of ethanol in motor fuel. (See 26 U.S.C. §§ 40; 4081) and in effect eliminates these benefits in the case of imported fuel ethanol. See 126 Conf.Rec. S.31709 (December 3, 1980) (statement of Senator Bellman); 126 Cong.Rec. H.11691 (December 3, 1980) (Statement of Representative Ullman). In turn, the tax benefits arising from the use of ethanol in motor fuel are designed to encourage the domestic production of this alternative to petroleum-based fuels. See Senate Rep. No. 95-529, 95th Cong., 2d Sess. 45, reprinted in 1978 U.S. CODE CONG & AD.NEWS 7981. Thus, item 901.50, TSUS, coupled with the tax subsidies provided in 26 U.S.C. §§ 40, 4081, affords a competitive price advantage to domestically produced ethanol and as such protects domestic producers of fuel grade ethanol by assuring that only domestically produced product benefits fully from the federal tax incentives. See also 126 Cong.Rec. S.153147 (December 3, 1980) (statement of Senator Dole). The RAJ analysis is sounder on the intent and effect of the tariff, but it is not enough to support the proposed conclusion that Staley’s injury is outside the zone of interest to be protected. While the evidence indicates that Staley itself has sought to sell imported Brazilian ethanol, that evidence also shows, and the court finds, that this plaintiff purchased millions of gallons of domestically-produced fuel ethanol for resale in North Carolina, Florida and elsewhere in 1985, including during the time of the entries disputed herein. See generally Schwandt Deposition, pp. 32-34. From the outset of this case, RAJ has sided with the defendants in their position that the plaintiffs were required to protest pursuant to 19 U.S.C. § 1516. This position was overruled in Slip. Op. 85-119, but it is useful to note that that section of the Tariff Act itself confers standing on merchandisers such as Staley. Furthermore, the plaintiffs were not required to pursue such a protest because of the nature of the controversy herein and the relief requested, including a declaratory judgment. When this relief is requested, the Supreme Court has stated: ... Basically, the question in each case is whether the facts alleged, under all circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. The facts adduced in this case show, and the court concludes, that plaintiff A.E. Staley Manufacturing Company meets the standing requirements. C. Lack of Standing of Other Plaintiffs Plaintiffs’ complaint on its face was sufficient to withstand a motion to dismiss. However, as the Court noted in Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 115 n. 31, 99 S.Ct. 1601, 1616 n. 81, 60 L.Ed.2d 66 (1979): Although standing generally is a matter dealt with at the earliest stages of litigation, usually on the pleadings, it sometimes remains to be seen whether the factual allegations of the complaint necessary for standing will be supported adequately by the evidence adduced at trial. Plaintiffs’ proof is inadequate to support standing now on the part of the National Corn Growers Association, New Energy Company of Indiana and the Ohio Farm Bureau Federation, Inc. Indeed, at trial counsel entered a stipulation to the effect that the New Energy Company does not now sell, nor has it ever sold, fuel ethanol in either PADD-I or California and that it is unable to identify in any way in which it has been injured by the importation of 44 million gallons of ethanol toluene blends during the 90 day grandfather period at issue in this case. Tr. at 102. As for the Ohio Farm Bureau Federation, Inc., the evidence shows that it is a trade representative of some 90,000 people and that it owns Ohio Farm Bureau Synfuels, Inc., which has a 20 percent interest in South Point Ethanol, a producer of fuel ethanol from com. South Point considers the State of Maryland an “attractive” potential market in view of its proximity to the company’s plant. See Tr. at 85. It sold some ethanol in that state in 1985, and it determined to attempt to market larger quantities there. To this end, a sizeable storage tank and some rail cars were leased for a year. But these steps were taken without any contractual commitment to purchase South Point’s ethanol. See id. at 84. And there was testimony to the effect that it is “almost impossible” to blend gasohol in Maryland due to “volatility standards”. See id. at 126. In other words, South Point, which was selling elsewhere all the ethanol it produced anyway, was looking to engender “new demand” in that state. See Tr. at 84. The hoped-for customer had been working with RAJ in an attempt to develop an appropriate gasohol blend for Maryland. But RAJ had not sold fuel ethanol to that company, thereby leaving plaintiffs’ counsel to contend now that the RAJ entry in California without payment of the item 901.50 duty enables RAJ to “compete more aggressively” in Maryland. Plaintiffs’ Post-Trial Brief, p. 31, n. 30. If the best proof of such aggressiveness is price, injury to the Ohio Farm Bureau Federation, Inc. has not been established since South Point’s proposed ethanol price was but a penny more a gallon than that of RAJ, which differential evaporates with the South Point testimony that the hoped-for customer prefers domestically-produced ethanol. See Tr. at 75. In sum, the evidence fails to substantiate standing on the part of plaintiff Ohio Farm Bureau Federation, Inc., and the same is true for plaintiff National Corn Growers Association. This latter organization was characterized at trial as a “non-profit, non-partisan association designed to benefit and represent the com growers of this country on issues of importance to them”. Id. at 88. It has some 17,000 members and 19 supporting members, including ADM and A.E. Staley. The testimony of its witness, however, failed to prove injury either to itself or to its corn-growing members caused by the actions of the defendants complained of herein. Rather, the evidence simply reflects a generalized concern for the continued expansion of domestic production of ethanol derived from homegrown corn. See id. at 88-95. The Supreme Court has held that a trade association like that of the corn growers does have standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977). Earlier, in Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 2211, 45 L.Ed.2d 343 (1975), the Court had pointed out that “[ejven in the absence of injury to itself, an association may have standing solely as the representative of its members.” However, proof of harm to one or more of those individual members is required to justify any relief. See 422 U.S. at 515, 95 S.Ct. at 2213. That proof of harm to individual growers of corn has not been adduced here, that is, there is no showing that Hunt condition (a), supra, is met. Rather, plaintiffs’ counsel argue now that the Association has standing based on the injury to nonvoting, “supporting members” ADM and A.E. Staley. But neither of these corporations is a corn grower, nor are their interests necessarily coincident with those of American com farmers. For example, ethanol can be, and is, derived from other grains. And those raw materials are also subject to importation. In short, the court is unable to conclude that the proven harm to ADM and A.E. Staley is sufficient to sustain the continued presence in this case of plaintiff National Corn Growers Association simply on the ground of payment of dues. Cf. Health Research Group v. Kennedy, 82 F.R.D. 21, 27-28 (D.D.C.1979). Ill The defendants argue in their post-trial brief that the plaintiffs have not shown that whatever injury in fact they suffered was caused by the activities of the Customs Service. This argument is not well-taken; the court finds that injury to plaintiffs ADM and A.E. Staley described above fairly can be traced to defendants’ determinations to permit more than 40 million gallons of fuel ethanol from Brazil to enter the United States during September and October 1985 for distribution and sale in PADD-I and California without payment of the duties prescribed by item 901.50, TSUS. Of course, in their motion for judgment on the agency record, submitted on the eve of trial, the defendants contend that their actions “were lawfully done”, to quote from page 4 of their memorandum of law. However, just as the facts do not support the thesis of defendants’ post-trial brief, neither does the law support their pre-trial position. Indeed, the best indicator of this is their own determination reached by August 1985 that they had been wrong to “impl[y to RAJ, Citicorp and other importers] that the duty of 60 cents per gallon provided for in item 901.50, TSUS, would not apply.” That is, to quote further from this revocation letter to RAJ: Upon review of this matter we conclude that the 60 cents per gallon duty should be applied to the ethyl alcohol component of this mixture when the mixture is imported for fuel use, inasmuch as the language of item 901.50 encompasses all ethyl alcohol, provided for in item 427.88, which is imported for fuel use, whether it is imported by itself or in a mixture. RD 16 (emphasis added). The administrative record contains a lengthy document [RD 114] prepared by The Brazilian Ethanol Producers’ Special Committee on the export potential of fuel ethanol and which computes an “additional availability of 250 million gallons yearly for export [to the United States], beginning in 1985.” The United States ambassador to Brazil sent the following letter dated July 5, 1984 [RD 94] to the defendant Commissioner of Customs: Recently my Senior Commercial. Officer, Mr. Emilio Iodice, and I met with Shegeaki Ueki, the president of the Brazilian state petroleum company Petrobras. Among the subjects we discussed was the tariff treatment of Brazilian anhydrous alcohol exported to the U.S. Because of the lack of foreign exchange due to growing debt service requirements, Brazil has become a world leader in the substitution of fuel alcohol for gasoline in automobiles. Unfortunately (from Brazil’s perspective), the very high U.S. tariffs on alcohol have greatly limited exports of Brazilian alcohol to the U.S. As you can see from Mr. Ueki’s note, Petrobras is interested in obtaining a favorable tariff ruling on the importation of anhydrous alcohol that is pre-blended with additives such as MTBE, BTX and others. According to Mr. Ueki, the product would be used as an additive to gasoline. What the Brazilians are interested in is finding some formula to export a product of alcohol, but which is different enough to qualify for a lower tariff rate. In view of the bad news they are about to get on alcohol in the Congress and from the States of California and Florida, a positive response on this subject would elicit a most positive reaction on the part of the Brazilians. It would serve somewhat to mitigate what has been considered here a growing protectionism stance on our part. I realize that you do not normally involve yourself in details like this, but I would appreciate your help in seeing that Mr. Ueki’s letter gets to the right office in Customs. After the ruling is made, I would be happy to transmit it to Mr. Ueki.... Customs responded favorably to this plea on September 12, 1984, concluding that item 901.50, TSUS would not be applied. Predictably, this resolution to disregard the plain meaning of this law engendered protests from domestic interests such as those now plaintiffs in this case and inquiries from members of Congress. For example, Senators Robert Dole and Richard G. Lu-gar sent a letter to Secretary Baker on July 17, 1985, stating, among other things: We are concerned about certain recent Customs Service letter rulings pertaining to the importation of certain so-called mixtures of ethanol with various other petroleum based additives. These rulings effectively contravene Congressional intent. Unless they are immediately revoked, there will be a substantial loss of revenue to the U.S. Treasury and a threat to the economic viability of a major new U.S. industry. The clear intent of Congress was to impose a special duty on imported fuel ethanol in order to offset corresponding U.S. tax exemptions for the sale of ethanol/gasoline blends. The current amount of this duty is 60$ per gallon plus a 3% ad valorem tax. These letter rulings permit a defacto [sic] repeal of this duty if the imported ethanol is simply mixed with as little as 7% toluene or other similar additive. RD 98. Recipients of the “letter rulings” referred to included RAJ, Citicorp, Certified Oil Company and Southern Missouri. With the exception of Southern Missouri, those letters were sent in June 1985. See RD’s 20, 84. In fact, Citicorp’s brief states that Citicorp had been exploring the possibility of importing mixtures containing ethanol since late 1984 and entered into an agreement with Petrobras in May 1985 to import a small quantity of an ethanol/toluene mixture. It imported 2.2 million gallons of this ethanol/toluene mixture, which was entered in July 1985. This was a “trial lot” (called “CitiChem I”) which Citicorp sold to its customer, Chemical Fuels Corporation. The mixture imported in July consisted of 92.5 percent Brazilian ethanol and 7.5 percent toluene. Although the Customs Service had not issued a ruling letter to Citicorp specifically for this shipment Citicorp believed, and Customs agreed, that the ethanol/toluene mixture was not dutiable under TSUS 901.50 because the Customs Service had so ruled such in other cases: ... Citicorp was entitled to rely on those rulings____ Trial run or not, Customs issued revocation letters to Citicorp and the other proposed importers on or about August 2, 1985, conditioned as follows: This revocation is made pursuant to section 177.9(d)(1), Customs Regulations, and is effective with respect to all entries made after 5:00 pm local time, August 2, 1985. Entries made prior to that time will be governed by the ruling previously issued to you. With respect to any entries made after the effective date of the instant ruling, Customs will consider all facts and evidence submitted by you in connection with claims of reliance on the ruling previously issued you. The issue raised by this decision, as phrased by defendants at page 3 of their memorandum, is whether the Customs Service had authority to permit the importation of ethanol blends beyond August 2, 1985, without the' payment of duties at the rate provided for under item 901.50, TSUS, following issuance of the foregoing revocation rulings. The court concludes that the answer to this question is that Customs did not have such authority. As Justice Holmes once stated on behalf of a unanimous Supreme Court, “there is no canon against using common sense in construing laws as saying what they obviously mean.” Roschen v. Ward, 279 U.S. 337, 339, 49 S.Ct. 336, 73 L.Ed. 722 (1929). Another unanimous Court, in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), noted that: The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent____ If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect. 467 U.S. at 843 n. 9, 104 S.Ct. at 2782 (citations omitted). Here, once the defendants had come to admit their erroneous disregard of the law, they opted for a course called reliance between the Scylla and Charybdis of their own creation. This choice compounded their error. Indeed, the ruminations at pages 8-9 of their memorandum of law are revealing, to wit: Within its judgment and discretion, the Customs Service could have implemented the substance of its August 2 (and 7), 1985 revocation decision(s) in several ways. It could have advised the recipients that it intended to revoke the earlier favorable rulings 90 days hence (i.e. on November 1, 1985), thereby providing 90 days notice (and perhaps permitting a flood of imports). Alternatively, the Customs Service could have done nothing and on November 1, 1985, revoked the rulings without notice (thereby potentially injuring importers and domestic purchasers). Additionally, the Customs Service might have implemented the revocations of August 2 and 7, 1985, in modified form by providing for a longer (or shorter) “grace period.” Alternatively, the Customs Service could have declined to act on plaintiffs’ request (RD Nos. 78 and 134) for administrative reconsideration of its original rulings (i.e., the ones revoked by the August 2 and 7 rulings) and compelled plaintiffs to initiate formal proceedings pursuant to the provisions of 19 U.S.C. § 1516. Finally, the Customs Service could have determined that a uniform and established practice existed (if investigation had permitted such a finding), thereby permitting importation of ethanol blends without the duties provided for under item 901.50, TSUS, until 30 (or 90) days following publication of the notice in the Federal Register____[footnote omitted] Expediency, however, having once failed the defendants, is not the correct guidepost — notwithstanding the validity of much that surrounds this presentation in their memorandum. For example, no one disputes 19 U.S.C. § 3’s grant to the Secretary of the Treasury of the “superintendence of the collection of the duties on imports as he shall judge best” or the power to promulgate rules and regulations encompassed in 19 U.S.C. § 1624 or the authority to prescribe forms of entries found in 19 U.S.C. § 66. But whatever the breadth of such statutory parameters, they do not accommodate defendants’ actions in this case. Sections 1624 and 66 of Title 19 are claimed to be pari materia, which makes the general powers set forth therein subject to the restraint “not inconsistent with law.” The law here (item 901.50, TSUS) provides: Ethyl alcohol (provided for in item 427.-88, part 2D, schedule 4) when imported to be used in producing a mixture of gasoline and alcohol or a mixture of a special fuel and alcohol for use as a fuel, or when imported to be used otherwise as fuel.....60c per gal. There is nothing in the record before the court to indicate that between the time of this item’s enactment in 1980 and 1984 the defendants had difficulty with either its plain meaning or its enforcement. Moreover, whatever uncertainty may have developed thereafter was laid to rest at the start of August 1985, as quoted above, page 942. In fact, the defendants have left the intervenor-defendants to contend now that “TSUS 901.50 was not intended to apply to mixtures”, which, in the view of these importers, are properly classified under item 432.10, TSUS. But this position glosses over the intended use of the Brazilian ethanol, namely, mixed with gasoline to fuel motor vehicles, which brings it within the ambit of item 901.50. If the intent were otherwise, each gallon could be subjected to the distilled spirits tax prescribed by 26 U.S.C. § 5001(a)(1), depending on the degree of denaturement by substances like the aromatic hydrocarbon toluene. That is, toluene is added to ethyl alcohol to avoid this tax, and not that of item 901.50. Cf. 26 U.S.C. § 5214(a)(1)(c). The defendants attempt to rely on 19 U.S.C. § 1315(d), which provides, in pertinent part: No administrative ruling resulting in the imposition of a higher rate of duty or charge than the Secretary of the Treasury shall find to have been applicable to imported merchandise under an established and uniform practice shall be effective with respect to articles entered for consumption or withdrawn. from warehouse for consumption prior to the expiration of thirty days after the date of publication in the Federal Register of notice of such ruling; ... But defendants’ own revocation letters in this case [RD 3, 7, 16, 23, 40, and 91] deny the existence of any “established and uniform practice”, and no publication of their decision(s) to revoke therefore occurred. In short, Section 1315(d), with its 30-day grace period, is inapposite. The defendants opted for a period of 90 days from the date of their revocation(s), and their counsel refer the court to the Customs Service’s general-ruling-procedure regulations, specifically, 19 C.F.R. § 177.-10(e). However, that regulation, covering effective dates of published decisions, provides for immediate application of rulings, except that a change of practice resulting in the assessment of a higher rate of duty or increased duties shall be effective only as to merchandise entered for consumption or withdrawn from warehouse for consumption on or after the 90th day after publication of the change in the FEDERAL REGISTER. The defendants admit, however, that their “revocation does not constitute a change in practice warranting publication”, and they therefore cannot rely on the time period of this regulation. Finally, the defendants seek support in 19 U.S.C. § 1514(c)(2), but the 90-day period in that section of the Tariff Act of 1930 is the amount of time permitted for the filing of a protest of decisions within the purview of subsection (a) thereof. Nothing in that statutory section contemplates the kind of time lapse at issue here. The Supreme Court has stated in Citizens to Preserve Overton Park v. Volpe, 401 U.S. at 415, 91 S.Ct. at 823, and other cases, that decisions of a cabinet Secretary are entitled to a presumption of regularity, but the Court also has pointed out that the “presumption is not to shield his action from a thorough, probing, in-depth review.” Such a review in this case shows a clear-cut attempt by the defendants not to apply the correct rate of duty prospectively, albeit limited to a period of 90 days. While their own regulation on the effect of a revocation of the kind at issue here, 19 C.F.R. § 177.9(d)(2), proscribes retroactive application, it does not provide for a prospective non-enforcement of the proper duty. Of course, if it did so provide, the regulation could run afoul of the longstanding rule that the Secretary of the Treasury cannot, by his regulations, alter or amend a revenue law. See, e.g., Morrill v. Jones, 16 Otto 466, 467, 106 U.S. 466, 467, 1 S.Ct. 423, 424, 27 L.Ed. 267 (1883); Czamikow-Rionda Company v. United States, 60 CCPA 6, 9, C.A.D. 1071, 468 F.2d 211, 214 (1972). In any event, there is no such regulation, nor is there any statute protecting defendants’ conduct in this case. As the Supreme Court stated as long ago as 1836: The Secretary of the Treasury is bound by the law, and although in the exercise of his discretion he may adopt necessary forms and modes of giving effect to the law, yet, neither he nor those who act under him, can dispense with, or alter any of its provisions. This principle remains just as true today. E.g., Chemung County v. Dole, 781 F.2d 963, 968 (2d Cir.1986) (“Government agencies are not at liberty to violate statutory commands”). IY The foregoing conclusion of the court that the defendants acted in excess of their statutory authority obviates a need to review the importer claims of reliance presented to the Customs Service. However, review of those claims, pressed now by the intervenor importers before the court, further reveals the unlawfulness of defendants’ actions. In Bowman Transportation, Inc. v. Arkansas—Best Freight System, Inc., 419 U.S. 281, 285-86, 95 S.Ct. 438, 441-42, 42 L.Ed.2d 447 (1974), the Supreme Court summarized the appropriate scope of judicial review under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), as follows: Under the “arbitrary and capricious” standard the scope of review is a narrow one. A reviewing court must “consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment____ Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.” Citizens to Preserve Overton Park v. Volpe, supra, at 416 [91 S.Ct. at 824]. The agency must articulate a “rational connection between the facts found and the choice made.” Burlington Truck Lines v. United States, 371 U.S. 156, 168 [83 S.Ct. 239, 246, 9 L.Ed.2d 207] (1962). While we may not supply a reasoned basis for the agency’s action that the agency itself has not given, SEC v. Chenery Corp., 332 U.S. 194, 196 [67 S.Ct. 1575, 1577, 91 L.Ed. 1995] (1947), we will uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned. Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 595 [65 S.Ct. 829, 836, 89 L.Ed. 1206] (1945). In this case, the agency’s governing regulation, 19 C.F.R. § 177.9(d), whi