Commerce's Power to Impose Regulations Can't Exceed Statutory Authority, Petitioner Tells CAFC
The Commerce Department's exceeded its statutory authority when it revoked an antidumping duty order on the grounds that it never received a notice of intent to participate from an interested domestic party in a sunset review, petitioner Archroma U.S. argued. Filing a reply brief at the U.S. Court of Appeals for the Federal Circuit, Archroma said Commerce's authority to ensure the "integrity of its procedures" doesn't allow it to "adopt measures exceeding its statutory authority" (Archroma U.S. v. United States, Fed. Cir. # 24-2159).
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The petitioner said the Tariff Act of 1930 establishes that "Congress has only authorized Commerce to terminate a review if no domestic interested party submits a Statutory Filing" and not, as the government pushes, a notice of intent to participate. The legislative history shows that "Congress carefully balanced the interest in administrative efficiency against the domestic industry’s interest in avoiding material injury from unfairly imported products," the brief said.
Commerce decided to revoke the AD orders on stilbenic optical brightening agents from China and Taiwan after Archroma failed to timely file a notice of intent to participate in the proceedings. The Court of International Trade rejected the move, finding that Commerce's regulation requiring this notice to be filed violates the governing statutes, 19 U.S.C. 1675(c)(2)-(3) (see 2412120018). The trade court adopted the "whole-text canon" approach to statutory interpretation, saying that reading the text in its entirety requires rejection of the agency's myopic reading of the law.
On appeal, the government said its requirement falls "squarely" within its authority to issue its own regulation, noting that its requirement is a "straightforward procedural filing" that places only a "minimal burden" on interested parties.
In response, Archroma said Commerce doesn't have an "inherent authority" to enact any procedures it sees fit, but is instead constrained to the authorities granted through the Tariff Act. A general grant of regulatory authority doesn't let the agency exceed statutory requirements, the company said.
The plain language of the Tariff Act shows that Commerce can only revoke an AD order without review if a party fails to submit the "statutory filing." Reading the text in its entirety as the trade court did shows that it's "obvious that ‘no response to the notice of initiation under this subsection’ in § 1675(c)(3)(A) means no answer to a solicitation for the substantive content that § 1675(c)(2)(A)-(C) instructs the agency to seek," the brief said.
The legislative history shows that Congress sought to ensure that the new sunset review provisions didn't "diminish" the level of protection given to U.S. industries from dumped imports, Archroma said. The statute works to "achieve this goal" by letting an order automatically sunset without review only after giving the domestic industry a chance to participate and requiring Commerce to "undertake at least some review even if the Statutory Filing is inadequate," the brief said.
By adopting the notice requirement, "Commerce circumvented these review procedures and subverted the careful balance Congress struck," the brief said.
In addition, the statute says that if no party responds to the notice of initiation requesting information identified in the law, Commerce shall issue a final determination within 90 days after the start of a review revoking the order. The agency's regulations require domestic parties to file a response to the notice of initiation within 30 days after its publication. As a result, a domestic party that files such a response gives the information that Congress required "well in advance of the statute's 90-day revocation deadline," Archroma argued.
Commerce has put a "burden on the domestic industry that is neither contemplated by the statutory text nor meaningfully correlated with Commerce’s own statutory deadlines" when it requires an additional and earlier submission from the domestic industry, the brief said. By requiring submission of the specific information requested by the statute, the "request for a substantive response is thus the request for the Statutory Filing" required by the law, the brief said.
Even if the statute were silent on certain aspects of the required filing, such as the filing's deadline or other industry data that the agency can request, "this does not make Commerce's notice of intent requirement lawful," the brief said.