Institution Notices Aren't Part of a Review, ITC Argues at Trade Court

An assessment of domestic interested party willingness to participate in five-year reviews of antidumping duty orders on stilbenic optical brightening agents from China and Taiwan doesn't itself constitute a "review," the International Trade Commission said in a Sept. 1 motion at the Court of International Trade. The ITC asked the court to affirm the termination of the five-year review of the AD orders at issue (Archroma U.S., Inc. v. U.S., CIT # 22-00354).

Archroma, a producer of stilbenic optical brightening agents, brought the case to challenge the ITC's and the Commerce Department's institution of five-year reviews on the AD orders. Those reviews, Archroma alleged, were carried out prematurely with the issuance of notices before the anniversary of the first review (see 2306270061).

The ITC said that its institution notice for the second five-year review of the orders, published on Oct. 3, 2022, was not premature because it was not a "review" conducted before the five-year anniversary date of Nov. 27, the commission said in its motion. Instead, Archroma misunderstood what “conduct” of a review is in the wider statutory sense, the ITC said. The commission argued that it and Commerce are authorized to assess interested party willingness to participate in the review "at least 30 days prior" to when they must begin a related review. "Such an initiation and assessment of willingness is not conducting a review," the ITC said. Instead, those notices are "a means of eliminating the need to conduct an unnecessary review ... ."