AGENCY:
Enforcement and Compliance, International Trade Administration, Department of Commerce.
SUMMARY:
On May 28, 2024, the U.S. Court of International Trade (CIT) issued its final judgment in Archroma U.S., Inc., v. United States et al., Court No. 22-00354, finding that the regulatory provision upon which the U.S. Department of Commerce relied to revoke the antidumping duty orders on stilbenic optical brightening agents (OBAs) from Taiwan and the People's Republic of China (China) violates section 751(c) of the Tariff Act of 1930, as amended (the Act) and ordering the U.S. Department of Commerce (Commerce) to: accept the domestic interested party Archroma U.S., Inc.'s (Archroma) substantive response; and conduct a full sunset reviews of these orders. Commerce is notifying the public that the CIT's final judgment is not in harmony with Commerce's final results of the sunset reviews, and that Commerce intends to: reinstate the antidumping duty orders on OBAs from Taiwan and China; accept Archroma's substantive response; and conduct full sunset reviews of these orders under section 751(c)(1) and (d)(2) of the Act. Commerce will begin reconducting the sunset reviews on July 1, 2024.
DATES:
Applicable June 7, 2024.
FOR FURTHER INFORMATION CONTACT:
Joshua Weiner, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-3902.
SUPPLEMENTARY INFORMATION:
Background
On May 10, 2012, Commerce published the antidumping duty orders on OBAs from Taiwan and China in the Federal Register . On October 3, 2022, Commerce initiated the sunset reviews of the Orders.
See Certain Stilbenic Optical Brightening Agents from Taiwan: Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order,77 FR 27419 (May 10, 2012); and Certain Stilbenic Optical Brightening Agents from the People's Republic of China: Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order,77 FR 27423 (May 10, 2012) (collectively, Orders).
See Initiation of Five-Year (Sunset) Reviews, 87 FR 59779 (October 3, 2022).
Pursuant to 19 CFR 351.218(d), the publication of a sunset review notice of initiation in the Federal Register establishes two deadlines: a 15-day notice of intent to participate; and a 30-day submission of “complete substantive responses.” On October 24, 2022, six days after the 15-day deadline ( i.e., October 18, 2022), Archroma submitted its notice of intent to participate in the sunset reviews of the Orders ; Archroma submitted its substantive response by the requisite deadline. Consequently, Commerce rejected Archroma's notice of intent to participate because it was untimely, and consequently rejected Archroma's substantive response as unsolicited due to Archroma's failure to submit a timely notice of intent to participate. Despite Archroma's subsequent requests for reconsideration, Commerce made no change to its decisions in this regard.
See Commerce's Letter, “Five-Year (“Sunset”) Review of the Antidumping Duty Orders on Stilbenic Optical Brightening Agents from China and Taiwan: Rejection of Notice of Intent to Participate,” dated October 28, 2022; see also Memorandum, “Rejection of Certain Documents in ACCESS,” dated November 9, 2022.
See Archroma's Letters, “Request for Reconsideration,” dated November 11, 2022; and “Supplemental Request for Reconsideration,” dated November 17, 2022.
See Commerce's Letter, “Rejection of Request for Reconsideration,” dated November 30, 2022.
On December 29, 2022, Commerce issued its final results in the sunset reviews of the Orders. Because no domestic interested party responded to Commerce's notice of initiation by the applicable deadline, Commerce revoked the Orders consistent with section 751(c)(3)(A) of the Act. Archroma subsequently challenged Commerce's Final Results at the CIT on that same day.
See Stilbenic Optical Brightening Agents from People's Republic of China and Taiwan: Final Results of Sunset Reviews and Revocation of Order,87 FR 80162 (December 29, 2022) ( Final Results).
Id.
The CIT held that Commerce could not lawfully revoke the Orders solely due to a domestic interested party's untimely filing of a notice of intent to participate. The CIT elaborated that section 751(c) of the Act allows for Commerce to revoke an order only if no domestic interested party provides an “answer to a solicitation for the substantive content that {section 751(c)(2) of the Act} instructs the agency to seek.” According to the CIT, because Archroma's timely substantive response satisfied the request for substantive material pursuant to section 751(c)(2)(B) of the Act, the agency was obligated to conduct the sunset reviews of the Orders. Additionally, the CIT held that Commerce's regulations at 19 CFR 351.218(d)(1), which sets the 15-day procedural deadline for a notice of intent to participate, violates section 751(c)(2)-(3) of the Act, because it removes from domestic interested parties the statutory right to submit substantive information in a sunset review if, as here, a timely notice of intent is not filed. Consequently, the CIT issued a declaratory judgment and injunction, ordering Commerce to accept Archroma's substantive response, and conduct full sunset reviews of the Orders.
See Archroma U.S., Inc., v. United States et al., Court No. 22-00354, Slip Op. 24-61 (CIT May 28, 2024).
Id. at 16.
Id. at 18.
Id. at 18.
Timken Notice
In its decision in Timken, as clarified by Diamond Sawblades, the U.S. Court of Appeals for the Federal Circuit held that, pursuant to section 516A(c) and (e) of the Act, Commerce must publish a notice of court decision that is not “in harmony” with an agency determination and must suspend liquidation of entries pending a “conclusive” court decision. The CIT's May 28, 2024, judgment constitutes a final decision that is not in harmony with Commerce's Final Results. Thus, this notice is published in fulfillment of the publication requirements of Timken.
See Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 1990) ( Timken).
See Diamond Sawblades Manufacturers Coalition v. United States, 626 F.3d 1374 (Fed. Cir. 2010) ( Diamond Sawblades).
Reinstatement of Antidumping Duty Orders
Pursuant to the CIT's May 28, 2024, final decision, Commerce is reinstating the Orders.
Reconduction of Sunset Reviews
Through this notice, we are notifying the public that Commerce is reconducting its sunset reviews of the Orders in accordance with the CIT's judgment. Commerce will begin reconducting the sunset review on July 1, 2024, to coordinate with the U.S. International Trade Commission's sunset reviews, pursuant to section 751(c) of the Act.
Liquidation of Suspended Entries
At this time, Commerce remains enjoined by CIT order from liquidating entries of OBAs China and Taiwan that are or were entered, or withdrawn from warehouse for consumption, on or after November 27, 2022. These entries will remain enjoined pursuant to the terms of the injunction during the pendency of any appeals process. In the event the CIT's ruling is not appealed, or, if appealed, upheld by a final and conclusive court decision, Commerce intends to instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on unliquidated entries of OBAs China and Taiwan that are or were entered, or withdrawn from warehouse for consumption, on or after November 27, 2022, as appropriate.
Cash Deposit Rates
At this time, Commerce remains enjoined by CIT order to require cash deposits at a rate of zero percent for entries of OBAs from China and Taiwan that are or were entered, or withdrawn from warehouse for consumption, on or after November 27, 2022. Upon a final and conclusive court decision in the litigation, Commerce intends to issue revised cash deposit instructions to CBP as appropriate.
Notification to Interested Parties
This notice is issued and published in accordance with sections 516A(c) and (e) and 777(i)(1) of the Act.
Dated: June 20, 2024.
Ryan Majerus,
Deputy Assistant Secretary for Policy and Negotiations, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2024-14029 Filed 6-25-24; 8:45 am]
BILLING CODE 3510-DS-P