US, Petitioners Defend Commerce's Sunset Review Process After Loper Bright

In the wake of Loper Bright, the U.S. and two defendant-intervenors raised three different sets of arguments July 25 in defense of the Commerce Department’s interpretation of the statute governing sunset reviews. All three opposed a plaintiff softwood lumber exporter’s claim that its case had been substantially strengthened by the demise of the Chevron doctrine (Resolute FP Canada v. U.S., CIT # 23-00095).

Exporter Resolute Canada argued July 17 that sunset reviews, under the plain language of the governing statute and the Statement of Administrative Action to the Uruguay Round Agreements, should default to negative antidumping determinations unless evidence indicates otherwise.

Its claim relies on Loper Bright v. Raimondo, the recent Supreme Court case that held courts may find the “best” interpretation of an ambiguous statute instead of deferring to an agency’s own “reasonable” interpretation (see 2406280051). Commerce’s past practice regarding sunset reviews, which courts deferred to under Chevron, uses a different standard, shifting the burden onto review respondents to prove they aren’t dumping.

Each of the three responses opposing Resolute’s claim made different arguments. In its own reply brief, the U.S. claimed that Commerce’s approach to sunset reviews still should be entitled to deference. Meanwhile, trade group Committee Overseeing Action for Lumber International Trade Investigations or Negotiations argued that the sunset review statute isn’t ambiguous, while producer Sierra Pacific Industries claimed that the statute’s language doesn’t support Resolute’s position.

First, the U.S. argued that Commerce is best-equipped to make interpretations about ambiguous statutes in the highly technical realm of trade law, citing the Loper Bright court’s holding that “although an agency’s interpretation of a statute ‘cannot bind a court,’ it may be especially informative ‘to the extent it rests on factual premises within [the agency’s] expertise.’”

“Thus, courts are informed by agencies’ interpretation and experience with statutes that Congress entrusted them to administer,” it said.

It also pointed out that, as Loper Bright noted, some laws “either expressly or impliedly” grant agencies the discretion to interpret them. The standard of agency review, too, is different between the laws governing Commerce’s sunset review proceedings and the Administrative Procedure Act; under the latter, courts, not agencies, are expressly invested with the power to decide “all relevant questions of law” regarding agency action, while the former says no such thing, it said.

Finally, Loper Bright also held that earlier cases that relied on Chevron still remain good law, the U.S. said, so “precedent sustaining Commerce’s interpretation of the antidumping and countervailing duty statutes remains in effect under the principle of stare decisis.”

“Although Loper Bright overruled Chevron deference to agency interpretations of silent or ambiguous statutes under the APA, it did not disturb the Federal Circuit’s longstanding recognition that Commerce’s determinations in antidumping and countervailing duty matters are entitled to deference distinct from Chevron, due to the Act’s complex and technical nature,” it argued.

On the other hand, the lumber coalition and domestic producer both argued in part that the court doesn’t need to reach Loper Bright in this case because it applies only to statutes that are ambiguous, and sunset review law isn’t.

Resolute claimed that the actual language of the SAA places the burden on Commerce to prove antidumping will continue in the absence of antidumping orders, but, actually, SAA “contradicts Resolute’s interpretation,” the coalition said. Legislative history shows that the U.S. actually successfully opposed automatic termination of antidumping reviews after five years, it said.

“Resolute fails to note the context in which the SAA discusses this issue,” it said. “Specifically, the discussion appears in the section of the SAA that addresses so-called ‘transition’ orders, which are antidumping and countervailing duty orders that were already in effect during the negotiation of the Uruguay Round.”

Resolute also wrongly found the statute to support company-specific AD revocation decisions; it can’t point to anything in the language that says so, and that argument “also conflicts with the principle that a negative inference may be drawn from the exclusion of language from one statutory provision that is included in other provisions of the same statute,” Sierra Pacific claimed. Partial AD revocations are allowed under administrative and changed circumstances reviews, but the statute doesn’t mention them at all in regard to sunset reviews, it said.

“Moreover, the fact that Commerce’s interpretation of the relevant statutory provisions has remained consistent since the enactment of the URAA further supports the agency’s interpretation,” it said.

The “good cause” requirement also wasn’t misinterpreted by the department, it said. The language of the governing law, it claimed, “reflects Congress’s delegation to Commerce the authority to decide whether the factual record developed in a particular sunset review warrants the consideration of other factors.”