Paper Whitener Maker Rails Against Decision to Revoke AD Orders During Sunset Review

The International Trade Commission and Commerce Department prematurely carried out its second sunset review of the antidumping duty order on stilbenic optical brightening agents from China and Taiwan, which led to the revocation of the orders, U.S. manufacturer Archroma argued in a Dec. 29 complaint at the Court of International Trade (Archroma v. U.S. Department of Commerce, CIT #22-00354).

The ITC is tasked with carrying out sunset reviews of AD orders every five years, though the commission must release a notice of initiation of a review no later than 30 days before the fifth anniversary of the order. On Oct. 3, the ITC and Commerce released their notices. Archroma said it filed a notice of appearance on Oct. 12 -- within the 21- and 15-day deadlines set by the ITC and Commerce, respectively, it said.

Commerce then asked the manufacturer on Oct. 24 whether it filed a notice of intent to participate, and Archroma did later that day. However, on Oct. 27, over 30 days before the five-year anniversary of the continuation order and before the 30-day deadline for filing briefs, Commerce told the ITC it would revoke the orders by Jan. 2, 2023. Commerce said the review was timely started since it kicked off at least 30 days before the five-year anniversary of the continuation order and that the orders were properly revoked since no domestic party filed a timely notice of intent to participate in the proceedings.

Archroma argues that Commerce and the ITC prematurely carried out the sunset review as the statute is unambiguous as to when these reviews shall take place. Section 1675(c)(1)(C) says that a review will be carried out five years after the date of the publication of a continuation order. "The Department’s decision, in this case, to conduct the Second Sunset Review, including requiring interested parties to file substantive briefs, before November 27, 2022 shortens the look-back period to less than five years," the complaint said. "This is inconsistent with the plain reading of the statute as well as the purpose of sunset reviews."

The statute also says that Commerce shall publish a notice of initiation of a review within 30 days of the five-year anniversary date and not actually conduct the review within this time, Archroma said. "Any other interpretation would also lead to absurd results."

Where Commerce also erred was imposing a 15-day regulatory deadline to file a notice of intent, since the deadline does not line up with the timing requirements set out in 19 U.S.C. Section 1675(c), the brief said. The statutes specify no deadline to file a notice of intent to participate. "Instead, section 1675(c)(3)(A) provides that '[i]f no interested party responds to the notice of initiation under this subsection, the administering authority shall issue a final determination, within 90 days after the initiation of a review, revoking the order or terminating the suspended investigation to which such notice relates.' The Department’s premature initiation coupled with a short 15-day regulatory deadline is inconsistent with the statutory scheme for conducting sunset reviews," Archroma said.