CIT Says Commerce Can't Nix AD Order After Not Getting Notice of Intent to Participate in Sunset Review

The Court of International Trade on May 28 said the Commerce Department erred in revoking the antidumping duty orders on stilbenic optical brightening agents from Taiwan and China after it didn't receive a timely notice of intent to participate in the orders' sunset reviews from a domestic producer. Judge M. Miller Baker told Commerce to conduct the full sunset reviews since U.S. manufacturer Archroma U.S. filed substantive responses to the agency's notice of initiation of the sunset reviews.

The court found Commerce regulation 19 C.F.R. § 351.218(d)(1) requiring the notice of intent to participate to violate the applicable statute, 19 U.S.C. § 1675(c)(2)-(3).

One provision of the statute tells Commerce to release a notice of initiation of the sunset review that requests that domestic interested parties submit three things: a statement indicating their willingness to participate in the review, a statement on the likely effects of the order's revocation and other information specified by Commerce. The next provision of the statute says that if "no [domestic] interested party responds to the notice," Commerce shall revoke the order.

While Archroma didn't timely file a statement indicating its willingness to participate, it did timely submit a substantive response on the need for the order's existence. Commerce said the failure to file this first statement meant the agency didn't receive a response to its start of the proceeding, revoking the orders.

Baker held that Commerce failed to follow the "whole-text canon" in interpreting the statute, which derives statutory meaning from all parts of the law and not just one single section. "Applying the whole-text canon of construction resolves this case," the opinion said.

The court found that "it's obvious" the provision saying Commerce can revoke the order if it receives no response to the initiation "means no answer to a solicitation for the substantive content that" the law tells the agency to seek. Since Archroma submitted a substantive response in time, Commerce should have conducted the reviews, the opinion said.

The law gives "no authority on the agency to revoke a duty order or bar participation based on" the "omission" of a notice of intent to participate, Baker said. Commerce must give a party the chance to submit "all the content prescribed" by the law -- something the agency's existing regulation doesn't do.

The case concerns two 2012 AD orders on stilbenic optical brightening agents, which were up for sunset reviews in 2022. Both the International Trade Commission and Commerce submitted notices of initiation, though the dates that responses were due were set six days apart. Archroma apparently consolidated the two dates and operated off the ITC's later due date. As a result, the company missed the deadline for Commerce's review.

Peter Koenig, counsel for exporter Teh Fong Min International Co., said in an email that many Commerce regulations are receiving increased judicial scrutiny, the present one just being another in that trend. Koenig said that with the "huge increase in AD/CVD petitions of late," the agency's regulations "may become even more of an issue."

(Archroma U.S. v. United States, Slip Op. 24-61, CIT # 22-00354, dated 05/28/24; Judge: M. Miller Baker; Attorneys: Chrisotpher Cazenave of Jones Walker for plaintiff Archroma; Brian Boynton for defendant U.S. government Department of Commerce; Dominic Bianchi for defendant International Trade Commission; Peter Koenig of Squire Patton for defendant-intervenor Teh Fong Min International Co.)