Commerce Has Authority to Set, Enforce Procedures in Sunset Reviews, Commerce Tells CAFC
The Commerce Department has the inherent authority to set procedural requirements in its antidumping duty and countervailing duty proceedings, making its revocation of certain AD orders lawful given that no interested domestic party filed a notice of intent to participate in sunset reviews on the orders, the agency said. Filing its opening brief at the U.S. Court of Appeals for the Federal Circuit on Dec. 11, Commerce said the Court of International Trade's rejection of its action usurped the department's clear authority to fix its own procedures (Archroma U.S. v. U.S., Fed. Cir. # 24-2159).
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At the heart of the dispute is Commerce's decision to revoke the AD orders on stilbenic optical brightening agents from China and Taiwan, which was made after petitioner Archroma U.S. failed to timely file notice of intent to participate in the proceedings. The trade court said Commerce's regulation requiring this notice to be filed violated the governing statutes, 19 U.S.C. § 1675(c)(2)-(3).
At CAFC, Commerce said its requirement falls "squarely" within its authority to issue regulations, first noting that it's a "straightforward procedural filing that places a minimal burden on domestic interested parties." While the trade court focused on the fact that Archroma timely responded to the agency's request for substantive information and that this should be enough for the firm to participate in the proceedings, Commerce said the trade court answered "the wrong question."
Archroma tried to file substantive responses, but they were rejected as untimely due to the failure to file a notice of intent to participate, Commerce said. The question isn't "whether Commerce may disregard a properly-presented substantive response," as CIT seems to think, but whether the agency can impose the "predicate procedural requirement of a notice of intent to participate," then revoke the AD order when no notice is submitted, the brief said.
Commerce argued that it has the general authority to implement its own procedural requirements as well as specific authority to further its implementation of the Uruguay Round Agreements Act (URAA). The agency said, generally, according to a U.S. Supreme Court ruling, an agency should be free to fashion its own procedures, absent "constitutional constraints."
As a result, the only restraint on the notice of intent requirement "is that an impacted party have notice of the requirement and an opportunity to reply," the brief said. Commerce gave Archroma notice of the deadline and a chance to timely file a response. "That was all that was required of Commerce," the brief said.
What's more is that the agency has a process by which untimely extension requests can be filed so long as the party shows "extraordinary circumstances," Commerce noted. Yet Archroma failed to avail itself of this avenue of relief as well, the agency said.
Commerce disagreed with the trade court on whether Section 1675(c)(2) limits Commerce's authority to enforce this procedural requirement. CIT didn't address Commerce's authority to set its own procedures, save for one footnote in its decision, but instead found the requirement to be unlawful based on its "whole-of-the-text canon of construction." The trade court said Commerce hasn't received a response to its notice of initiation when it doesn't get substantive replies to its solicitations.
The agency replied that this "holding does not resolve the question at hand," given that Commerce was free to set its own procedures. In addition, Commerce argued that the whole-of-the-text cannon of interpretation supports its reading of the law. Consideration of the URAA "as whole must lead to the conclusion that § 1675(c)(2) -- silent as it is with respect to procedural conditions that Commerce may impose -- does not preclude Commerce from setting the notice of intent requirement in furtherance of the implementation of the URAA," the brief said.