Commerce Illegally Conducted Sunset Review Before 5-Year Anniversary of Last Decision, Company Argues

The Commerce Department and the International Trade Commission prematurely carried out the second sunset review of the antidumping duty order on stilbenic optical brightening agents from Taiwan and China, U.S. company Archroma U.S. argued in its June 26 motion for judgment at the Court of International Trade (Archroma U.S., Inc. v. United States, CIT # 22-00354).

The law says that Commerce and the ITC can conduct a review of an AD order "five years after the date of publication of a determination under this section to continue an order or suspension agreement." For the orders on stilbenic optical brightening agents, five years after Commerce's continuation order that came from the first sunset review was Nov. 27, 2022. However, on Oct. 27, 2022, Commerce said it was revoking the AD order given Archroma's failure to file a notice of intent to participate within 15 days of the agency's initiation notice for the sunset review.

"The agencies’ decision to prematurely conduct the Second Sunset Review was ultra vires and set in motion a procedure that resulted in the wrongful revocation of the AD Orders," Archroma said. "The agencies acted without statutory authority to conduct the Second Sunset Review of the AD Orders before the fifth anniversary of the November 27, 2017 continuation order, and therefore, the revocation of the AD Orders must be declared ultra vires."

The company said that the language in the law is "unambiguous," meaning Chevron deference does not apply. The statute clearly shows that Congress meant for five-year AD reviews to be carried out on or after the five-year anniversary date of the continuation order, the brief said. Archroma characterized Commerce's decision to revoke the order as equivalent to conducting the review, meaning its decision to carry out the review "shortens the look-back period to less than five years" in violation of the statute.

"Any other interpretation would also lead to absurd results," the brief said. "If the statute gives the agencies the authority to initiate a review anytime not later than 30 days before the fifth anniversary of the continuation order, the agencies could initiate a review 60 days, 180 days, 365 days, ad infinitum all the way back to one day after the continuation order."

Archroma added that even if the statute is found to be ambiguous, "any interpretation that leads to the revocation of the AD orders is unreasonable." Commerce's decision to revoke the order due to the failure to timely respond to the notice of initiation does not address when the agency can conduct a review "compared to when Commerce may issue its perfunctory notice of initiation of a sunset review," the brief said.

The manufacturer painted a picture of Commerce ignoring key deadlines set in the statute and review process. The company said that while the statute clearly says the agency cannot conduct the review until after Nov. 27, 2022, it decided no later than Oct. 27, 2022, that it would revoke the order. "There is no reasonable justification to prematurely initiate sunset reviews, require parties to file notices of intent to participate nearly 45 days before the review may be conducted, and require parties to file substantive responses all well before the review is to be conducted pursuant to statute -- especially where Commerce stands ready to revoke antidumping orders before Commerce even has statutory authority to conduct the sunset review," the brief said.