Slip Op. 24-61
UNITED STATES COURT OF INTERNATIONAL TRADE
Court No. 22-00354
ARCHROMA U.S., INC., Plaintiff, v. UNITED STATES DEPARTMENT OF COMMERCE and UNITED STATES INTERNATIONAL TRADE COMMISSION, Defendants, and TEH FONG MIN INTERNATIONAL CO. LTD., Defendant-Intervenor.
Before: M. Miller Baker, Judge
OPINION
[The court grants Plaintiff’s motion for judgment on the agency record, holds that 19 C.F.R. § 351.218(d)(1) violates 19 U.S.C. § 1675(c), and orders Defendants to undertake full sunset reviews with Plaintiff’s partici- pation.]
Dated: May 28, 2024
Christopher D. Cazenave, Jones Walker LLP, New Orleans, LA, on the briefs for Plaintiff. Ct. No. 22-00354 Page 2
Brian M. Boynton, Principal Deputy Assistant Attor- ney General; Patricia M. McCarthy, Director; Franklin E. White, Jr., Assistant Director; and Geoffrey M. Long, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Washington, DC, on the brief for Defendant U.S. De- partment of Commerce. Of counsel on the brief was Ayat Mujais, Senior Attorney, Office of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce, Washington, DC.
Dominic L. Bianchi, General Counsel; Andrea C. Casson, Assistant General Counsel for Litigation; and Henry N.L. Smith, Attorney-Advisor, Office of the General Counsel, U.S. International Trade Commission, Washington, DC, on the brief for Defendant U.S. International Trade Commission.
Peter Koenig, Squire Patton Boggs (US) LLP, Wash- ington, DC, on the brief for Defendant-Intervenor.
Baker, Judge: Although federal agencies may last forever, see Ronald Reagan, A Time for Choosing (Oct. 27, 1964) (“[A] government bureau is the nearest thing to eternal life we’ll ever see on this earth.”),1 an- tidumping and countervailing duty orders mercifully don’t. Such decrees generally sunset after five years unless a domestic interested party timely responds to the Commerce Department’s warning of the pending
1 Available at https://www.reaganlibrary.gov/reagans /ronald-reagan/time-choosing-speech-october-27-1964. Ct. No. 22-00354 Page 3
lapse by submitting certain information prescribed by statute. Receiving such material requires the agency to determine whether to continue the tariff.
In this case, Commerce announced that two anti- dumping orders were soon due for sunset reviews. A domestic producer missed—by six days—a 15-day reg- ulatory deadline to file a “notice of intent to partici- pate” in any reviews but met the regulation’s later cut- off to file “substantive responses” with the statutorily required content. The Department nevertheless re- fused to consider those submissions and instead per- emptorily revoked the decrees because of the com- pany’s tardy notice of intent. The producer then sued.
The court holds that the regulation contradicts the statute. Commerce may not cancel an antidumping or countervailing duty order or bar domestic interested parties from taking part in a five-year review without first letting them submit the content dictated by Con- gress. The Department must accept the producer’s timely substantive responses and undertake (together with the International Trade Commission) full sunset reviews with the company’s participation.
I
Subject to certain limited exceptions not relevant here, the Tariff Act of 1930, as amended, directs that Commerce and the Commission each undertake a “five-year review” of antidumping and countervailing duty orders, see 19 U.S.C. § 1675(c), commonly known Ct. No. 22-00354 Page 4
as a “sunset review,” see 19 C.F.R. § 351.218(a). In most cases, the statute requires an initial sunset re- view five years “after the date of publication” of an an- tidumping or countervailing duty order. 19 U.S.C. § 1675(c)(1)(A). 2 If both agencies determine that the order should remain in force, the statute mandates that subsequent sunset reviews take place every five years “after the date of publication of . . . a determina- tion under this section to continue an order.” Id. § 1675(c)(1)(C). 3
As to both initial and subsequent sunset reviews, the statute directs the Department to publish “a notice of initiation” “[n]ot later than 30 days before the fifth anniversary of the date described in [§ 1675(c)(1)].”
2 As to certain countervailing duty orders, the trigger date
for an initial sunset review is different. See 19 U.S.C. § 1675(c)(1)(A)–(B). 3 Commerce construes a “determination under this section
to continue an order” as meaning the Commission’s deter- mination to keep the antidumping duty order in effect. See 19 C.F.R. § 351.218(c)(2) (“In the case of an order . . . that is continued following a sunset review . . ., no later than 30 days before the fifth anniversary of the date of the last de- termination by the Commission to continue the order . . ., the Secretary will publish a notice of initiation of a sunset review . . . .”). Ct. No. 22-00354 Page 5
Id. § 1675(c)(2). 4 This notice must instruct domestic “interested parties” 5 to submit
(A) a statement expressing their willingness to participate in the review by providing infor- mation requested by [Commerce] and the Com- mission,
(B) a statement regarding the likely effects of revocation of the order or termination of the sus- pended investigation, and
(C) such other information or industry data as [Commerce] or the Commission may specify.
19 U.S.C. § 1675(c)(2).
A timely submission to the Department providing the content mandated by § 1675(c)(2) is critical be- cause if “no [domestic] interested party responds to the notice of initiation under this subsection,” Commerce “shall . . . revok[e] the order” in what amounts to an
4 The Commission explains that in practice it publishes its
own companion “notice of institution” the same day the De- partment issues a notice of initiation “because the statute contemplates simultaneous five-year reviews by both agen- cies.” ECF 39, at 8 n.1. 5 See 19 U.S.C. § 1675(c)(3)(A) (defining “interested party”
for “purposes of this paragraph” as various domestic enti- ties described in 19 U.S.C. § 1677(9)(C)–(G)). Ct. No. 22-00354 Page 6
administrative default judgment. Id. § 1675(c)(3)(A). 6 Essentially, the statute requires such parties to speak up in support of continuing a duty order or forever hold their peace. 7
Although § 1675(c)(2) dictates the information that domestic interested parties must provide to prevent a duty order’s demise, the statute does not speak to when such a submission is due. Stepping into the breach, the Department imposes two separate dead- lines through regulation.
The first, and earlier, deadline requires that a do- mestic interested party wishing to participate in a sunset review file a “notice of intent to participate” no later than 15 days after Commerce publishes the no-
6 The court expresses no view on whether § 1675(c)(3)(A)
permits Commerce to revoke a duty order when an inter- ested party fails to respond to the Commission’s notice of institution of a sunset review. See above note 4. 7 If a domestic interested party does respond to a notice of
initiation under § 1675(c), the Department must consider whether, if the order were revoked, “dumping or a counter- vailable subsidy, as the case may be, would be likely to con- tinue or recur.” 19 U.S.C. § 1675(d)(2)(A). The Commission must do the same as to material injury. See id. § 1675(d)(2)(B). If the party submits “inadequate” re- sponses to Commerce or the Commission, id. § 1675(c)(3)(B), either agency “may issue, without further investigation, a final determination based on the facts available [under 19 U.S.C. § 1677e],” id. Ct. No. 22-00354 Page 7
tice of initiation. 19 C.F.R. § 351.218(d)(1)(i). 8 An en- tity that fails to do so “will be considered not willing to participate in the review and the [Department] will not accept or consider any unsolicited submissions from that party during the course of the review.” Id. § 351.218(d)(1)(iii)(A). “If no domestic interested party files a notice,” id. § 351.218(d)(1)(iii)(B), Commerce will “[c]onclude that no [such] party has responded to the notice of initiation under [the statute],” id. § 351.218(d)(1)(iii)(B)(1), and “revok[e] the order,” id. § 351.218(d)(1)(iii)(B)(3).
The second, and later, deadline requires any inter- ested party—not just domestic entities—to submit a “complete substantive response” not later than 30 days after publication of a notice of initiation. Id. § 351.218(d)(3)(i) (emphasis added). As relevant here, the regulation tracks 19 U.S.C. § 1675(c)(2)(A)–(B) word-for-word in prescribing what that submission must include:
(E) A statement expressing the interested party’s willingness to participate in the review by providing information requested by the Depart- ment, which must include a summary of that party’s historical participation in any segment of
8 Other than a bare-bones statement of the party’s “intent
to participate in [the] sunset review,” 19 C.F.R. § 351.218(d)(1)(ii), the only other required contents in a no- tice of intent are basic factual details such as the entity’s contact information, see id. § 351.218(d)(1)(ii)(A)–(E). Ct. No. 22-00354 Page 8
the proceeding before the Department related to the subject merchandise; [and]
(F) A statement regarding the likely effects of rev- ocation of the order or termination of the sus- pended investigation under review, which must include any factual information, argument, and reason to support such statement . . . .
19 C.F.R. § 351.218(d)(3)(ii) (emphasis added). 9
9 The Commission has a similar framework for responding
to its “notice of institution” of a sunset review. See id. § 207.60(d) (defining that term). Within 21 days of such publication, an interested party must file an “entry of ap- pearance” with the agency. See id. § 201.11(b)(4). Like Commerce’s “notice of intent,” the Commission’s entry of appearance only requires bare-bones information: “the na- ture of the person’s reason for participating” in the review and an expression of “intent to file briefs with the [agency].” Id. § 201.11(a). Unlike the Department, how- ever, the Commission’s regulation does not indicate that a failure to make this procedural filing is fatal. Reinforcing this apparent difference, the latter’s regula- tion states that all “[r]esponses to the notice of institution shall be submitted to the Commission” within 30 days of publication. Id. § 207.61(a). Thus, an “entry of appearance” is not a response to such a notice. A response must contain the material specified by 19 U.S.C. § 1675(c)(2)(A)–(B) as well as other data requested by the Commission. See 19 C.F.R. § 207.61(b). Ct. No. 22-00354 Page 9
II
This case involves two 2012 antidumping orders on paper-whitening chemicals from Taiwan and China. See 77 Fed. Reg. 27,419; 77 Fed. Reg. 27,423. Sunset reviews for both decrees in 2017 led to a “notice of con- tinuation” keeping them in effect. See 82 Fed. Reg. 55,990.
On October 3, 2022—ironically, three days late un- der its own regulation,10 cf. Luke 4:23 (“Physician, heal
10 The Commission published its determination to continue
the orders on November 1, 2017, see 82 Fed. Reg. 50,678, 50,678–79, which meant the Department was required to publish a notice of initiation “no later than 30 days before” November 1, 2022, the “fifth anniversary date,” 19 C.F.R. § 351.218(c)(2) (emphasis added); see also above note 3. Thirty days before that date was October 2, 2022—a Sun- day. “[W]here a . . . deadline falls on a weekend, federal holi- day, or any other day when the Department is closed,” Commerce’s practice is to treat the “the next business day” as the applicable deadline “consistent with federal practice. See Fed. R. Civ. P. 6(a); Fed R. App. P. 26(a).” 70 Fed. Reg. 24,533, 24,533. Under the cited federal rule provisions, “[t]he ‘next day’ is determined by continuing to count for- ward when the period is measured after an event and back- ward when measured before an event.” Fed. R. Civ P. 6(a)(5) (emphasis added); Fed. R. App. P. 26(a)(5) (same). The deadline established by § 351.218(c)(2) is determined by counting backward, so the cutoff moved back from Sunday, October 2, to Friday, September 30. Here, the Department instead erroneously counted forward and published the Ct. No. 22-00354 Page 10
thyself”)—Commerce published a notice of initiation for new five-year reviews of both orders. See 87 Fed. Reg. 59,779. The Department instructed domestic in- terested parties to file “notice[s] of intent to partici- pate” within 15 days (by October 18) and all interested parties to submit “complete substantive responses” with statutorily required information within 30 days (by November 2). See id. at 59,780. It also warned that if the agency did “not receive a notice of intent to par- ticipate from at least one domestic interested party by the 15-day deadline,” it would “automatically revoke the [relevant] order without further review.” Id. (citing 19 C.F.R. § 351.218(d)(1)(iii)). 11
Although both agencies established the same date for submitting statutorily required substantive infor- mation—November 2, 2022—their notices set differ- ent deadlines for the earlier procedural filings. The Department’s cutoff date for a notice of intent (October
notice of initiation on October 3. Because the court resolves this case on other grounds, it need not consider the effect, if any, of Commerce’s untimely issuance of its notice. 11 The Commission, meanwhile, published a notice of insti-
tution on the same day as Commerce and directed all in- terested parties wishing to participate to file entries of ap- pearance within 21 days (by October 24) and substantive responses containing statutorily required material within 30 days (by November 2). See 87 Fed. Reg. 59,827, 59,827– 28; see also above notes 4, 9. Ct. No. 22-00354 Page 11
18) was six days earlier than the Commission’s (Octo- ber 24) for an entry of appearance.
That difference is what gives rise to this litigation, because Archroma U.S., Inc.—a domestic producer of the chemical that is the subject of the antidumping duty orders here 12—appears to have transposed those deadlines. The company (timely) filed its entries of ap- pearance with the Commission on October 12, Appx001304–001305, which was also before the De- partment’s deadline for notices of intent. But on Octo- ber 24—the last day for making its procedural filings with the Commission—the company made its pro forma submissions with Commerce, Appx001137– 001139, six days late. As the rueful saying goes, mis- takes were made.
The Department rejected Archroma’s notices of in- tent as untimely and removed them from the record. Appx001011–001012. No other domestic interested party filed such a notice, so on October 27—before the 30-day deadline to file substantive responses—Com- merce notified the Commission that it would revoke the orders. Appx001006–001007; Appx001140– 001141.
Archroma nevertheless timely filed substantive re- sponses and requested the Department accept the
12 The company states it is the successor of Clariant Corpo-
ration, “the original petitioner in the underlying . . . pro- ceeding that led to the” orders. ECF 35, at 2–3. Ct. No. 22-00354 Page 12
company’s untimely notices of intent. Appx001014– 001016; see also Appx001036 (referring to the re- sponses’ barcodes). 13 Commerce denied that request, finding no showing of an “extraordinary circum- stance,” and rejected the responses. Appx001035– 001036. Archroma asked for reconsideration, Appx001038–001056, which the Department also de- nied, Appx001082–001084. 14
Commerce then revoked the orders because “no do- mestic interested party responded to the sunset review notice of initiation by the applicable deadline.” 87 Fed. Reg. 80,162, 80,162; Appx001089. Two weeks later, the Commission ended its review, citing Commerce’s action. 88 Fed. Reg. 2,374; Appx001295.
III
Invoking jurisdiction conferred by 28 U.S.C. § 1581(c), see ECF 29 (amended complaint), at 2, Archroma brought this suit under 19 U.S.C. § 1516a(a)(1)(D) 15 against the Department and the
13 Archroma also timely submitted substantive responses
to the Commission’s notice of institution. Appx001263– 001293. 14 In so doing, Commerce erroneously stated that it timely
issued the notice of initiation on October 3. Compare Appx001083 and Appx001083 n.10 with above note 10. 15 This provision gives interested parties who were “party
to the proceeding in connection with which the matter arises” a right of action in this court to contest any factual Ct. No. 22-00354 Page 13
Commission challenging revocation of the antidump- ing orders. 16 See generally ECF 29. Teh Fong Min In- ternational Co. Ltd., a Taiwanese producer and ex- porter, intervened to support the agencies. ECF 18. Archroma then moved for judgment on the agency rec- ord (ECF 35); Commerce (ECF 40), the Commission (ECF 39), and Teh Fong Min (ECF 41, joining the agencies’ briefs) opposed. After receiving supple- mental briefing from the Department (ECF 51), Archroma (ECF 52), and the Commission (ECF 53), 17 the court decides the motion on the papers.
The parties assert that this case is subject to sub- stantial-evidence review under 19 U.S.C. § 1516a(b)(1)(B)(i). See ECF 35, at 7 (Archroma); ECF 40, at 8 (Commerce); ECF 39, at 5 (the Commission). The court disagrees because this is a § 1516a(a)(1)(D) case. The statute directs that “[t]he court shall hold unlawful any determination, finding, or conclusion found—. . . in an action brought under paragraph (1)(D) of subsection (a), to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
findings or legal conclusions on which “a final determina- tion by [Commerce] or the Commission under [19 U.S.C. §] 1675(c)(3)” is based. 16 The company concurrently sought a preliminary injunc-
tion keeping the orders effective pending this litigation, ECF 7, to which Commerce consented, see ECF 8. 17 The court thanks the parties for their helpful supple-
mental briefing. Ct. No. 22-00354 Page 14
with law.” 19 U.S.C. § 1516a(b)(1)(B)(ii) (emphasis added); see also Neenah Foundry Co. v. United States, 142 F. Supp. 2d 1008, 1013 (CIT 2001) (thoroughly ex- plaining why arbitrary-and-capricious, rather than substantial-evidence, review applies to agency deter- minations under 19 U.S.C. § 1675(c)(3)).
IV
Archroma argues that 19 C.F.R. § 351.218(d)(1)(iii)’s 15-day deadline for filing a notice of intent to participate exceeds “Commerce’s statutory authority” because it “effectively barred [the com- pany’s] opportunity to submit the substantive infor- mation required by 19 U.S.C. § 1675(c)(2).” ECF 52, at 3, 5. It asserts that its timely submission of that ma- terial “contained all [the] information necessary” un- der the statute for the Department to undertake full sunset reviews. ECF 35, at 4.
Commerce answers that § 351.218(d)(1)(iii)’s dead- line “represents a lawful interpretation of § 1675(c).” ECF 51, at 9. It contends that because the statute fails to define what “constitute[s] ‘no response,’” id. at 10, “it is reasonable for [the Department] to determine that if a party does not submit a notice of intent to par- ticipate . . . then the party has not responded, trigger- Ct. No. 22-00354 Page 15
ing the revocation under 19 U.S.C. § 1675(c)(3)[(A)],” id. 18
Commerce errs by reading “no . . . respon[se]” in § 1675(c)(3)(A) in isolation: “Perhaps no interpretive fault is more common than the failure to follow the whole-text canon, which calls on the judicial inter- preter to consider the entire text, in view of its struc- ture and of the physical and logical relation of its many parts.” Scalia and Garner, Reading Law: The Interpre- tation of Legal Texts 167 (2012). Thus, “the meaning of a statute is to be looked for, not in any single section, but in all the parts together and in their relation to the end in view.” Id. at 168 (quoting Panama Refin. Co. v. Ryan, 293 U.S. 388, 439 (1935) (Cardozo, J., dissent- ing)).
Applying the whole-text canon of construction re- solves this case. Commerce may revoke an antidump- ing or countervailing duty order only if “no [domestic] interested party responds to the notice of initiation un- der this subsection.” 19 U.S.C. § 1675(c)(3)(A) (empha- sis added). That subsection’s preceding paragraph mandates that such a notice
18 The agency adds that the deadline “promotes adminis-
trative efficiency and eliminates needless reviews” by alert- ing it “whether it will need to conduct a full sunset review, which requires substantial time and resources from the agency.” Id. at 11. Ct. No. 22-00354 Page 16
request that [domestic] interested parties sub- mit—
(A) a statement expressing their willingness to participate in the review by providing infor- mation requested by [Commerce] and the Com- mission,
(B) a statement regarding the likely effects of revocation of the order or termination of the sus- pended investigation, and
(C) such other information or industry data as [Commerce] or the Commission may specify.
Id. § 1675(c)(2) (emphasis added). Reading (c)(2) and (c)(3) together—that is, in context—it’s obvious that “no . . . respon[se] to the notice of initiation under this subsection” in § 1675(c)(3)(A) means no answer to a so- licitation for the substantive content that § 1675(c)(2)(A)–(C) instructs the agency to seek.
It’s undisputed that Archroma timely responded to Commerce’s request for substantive material pre- scribed by § 1675(c)(2)(A)–(C). The statute therefore obligated the Department to undertake reviews and allow the company to participate in the ensuing pro- ceedings. 19 Although Archroma failed to timely submit
19 If a domestic interested party timely submits substantive
information required by the statute, it necessarily follows that such an entity has a concomitant entitlement to parti- Ct. No. 22-00354 Page 17
a notice of intent to so participate, the statute confers no authority on the agency to revoke a duty order or bar participation based on that omission. Commerce does not contest that the threadbare document it in- structed domestic interested parties to file within 15 days did not require any—much less all—of the con- tent specified in § 1675(c)(2)(A)–(C). 20 By revoking the orders and barring the company’s participation, Com- merce jumped the statutory gun.
The court holds that 19 C.F.R. § 351.218(d)(1) vio- lates 19 U.S.C. § 1675(c)(2)–(3). If Commerce is to
cipate in the review. Otherwise, the right to provide the content specified by Congress would be “remarkably hol- low.” Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 629 (2009). 20 One might argue—though the Department wisely makes
no such contention here—that the “notice of intent to par- ticipate” required by 19 C.F.R. § 351.218(d)(1) falls within “such other information or industry data as [Commerce] . . . may specify.” 19 U.S.C. § 1675(c)(2)(C) (emphasis added). That reading, even if accepted, would still be unavailing because of the conjunction “and” in § 1675(c)(2). Before Commerce may revoke a duty order in a five-year review, it must first afford domestic interested parties an oppor- tunity to submit content specified in subparagraphs (A), (B), and (C) in § 1675(c)(2)—that is, all such content. See Scalia and Garner, above, at 116 (explaining that where a “conjunctive list” prescribes that “You must do A, B, and C,” “all three things are required”). So even if § 351.218(d)(1) is read to request content encompassed by § 1675(c)(2)(C), it still does not seek material prescribed by § 1675(c)(2)(A) and (B) and therefore violates the statute. Ct. No. 22-00354 Page 18
revoke a duty order and/or bar a domestic interested party’s participation in any sunset review, it must first afford that party the opportunity to submit all the con- tent prescribed by 19 U.S.C. § 1675(c)(2)(A)–(C). The regulation extinguishes that statutory right if, as here, such an entity fails to timely file a notice of intent. The court therefore grants Archroma’s motion for judg- ment on the agency record and enjoins the Depart- ment to accept the company’s substantive responses, 21 undertake (together with the Commission) full sunset reviews, and allow the company’s participation. A sep- arate declaratory judgment and injunction will issue. See USCIT R. 58(a).
Dated: May 28, 2024 /s/ M. Miller Baker New York, NY M. Miller Baker, Judge
21 After accepting Archroma’s substantive responses, the
Department must determine whether they are satisfactory or “inadequate.” See 19 U.S.C. § 1675(c)(3)(B); see also above note 7. The court expresses no view on that question, which the agency did not consider in the first instance.