US Backs Commerce's Requirement to File Notice of Intent to Take Part in Sunset Reviews
The U.S. defended the Commerce Department's ability to require petitioners to file a notice of intent to participate in sunset reviews at the U.S. Court of Appeals for the Federal Circuit. In a reply brief on March 21, the government said the "whole-text canon of statutory interpretation" doesn't support petitioner Archroma's challenge to this requirement, since the statute on which the company bases its claim "does not limit Commerce’s power to impose procedural requirements to be met before a domestic interested party may submit the information called for by the statute" (Archroma U.S. v. United States, Fed. Cir. # 24-2159).
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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.
Responding to Archroma's arguments defending the trade court's decision, the U.S. said the case law the petitioner relies on doesn't support its position. For instance, Archroma cites Merck & Co v. U.S. Dept. of Health & Human Services for the rule that even broad rulemaking power must be exercised within the limits set by Congress. To this, the government said it's not claiming that Commerce has "inherent authority to issue any procedural rule it sees fit."
Instead, the government said it's point is that "the notice of intent requirement at 19 C.F.R. § 351.218(d)(1) falls well within Commerce’s authority to set its internal procedures, and particularly within the [Uruguay Round Agreements Act] grant of regulatory authority to Commerce." The Merck court itself distinguished cases where the "agency aimed its rule at ... the agency's own operations." None of the cases Archroma relies on "address an agency’s authority to set internal procedures to accomplish statutorily-mandated tasks," the brief said.
The U.S. then faulted Archroma for failing to address, or even cite, M S International v. U.S., in which the Federal Circuit allowed Commerce to set its own procedures. In M S International, the appellate court said "Commerce may set such deadlines where the statute is silent."
By ignoring this case, "Archroma fails to explain why, given that Commerce is free under this Court’s precedents to set deadlines not established by statute, the agency is not also free to require a procedural filing that Archroma agrees is minimal in nature," the brief said.
The government added that Archroma's "textual argument is also unconvincing," since the statute doesn't "even suggest that Commerce’s general authority to set procedures is limited by the statute’s delineation of the information that Commerce is to solicit in the agency’s notice of initiation of a sunset review."