CSC Sugar LLC v. United States , 317 F. Supp. 3d 1334 ( 2018 )

Slip Op. 18-64
UNITED STATES COURT OF INTERNATIONAL TRADE
CSC SUGAR LLC,
Plaintiff, Before: Leo M. Gordon, Judge
v. Court No. 17-00214
UNITED STATES,
Defendant.
OPINION and ORDER
[Plaintiff’s motion to complete the administrative record is granted in part and denied in
part.]
Dated: June 1, 2018
Jeffrey S. Neeley and Michael Klebanov, Husch Blackwell, LLP, of Washington,
DC for Plaintiff CSC Sugar LLC.
Alexander O. Canizares, Trial Attorney, Commercial Litigation Branch, Civil
Division, U.S. Department of Justice, of Washington, DC for Defendant United States.
With him on the brief was Reginald T. Blades, Jr., Assistant Director. Of counsel on the
brief was Khalil Gharbieh, Attorney, U.S. Department of Commerce, Office of the Chief
Counsel for Trade Enforcement and Compliance of Washington, DC.
Robert Charles Cassidy, Jr., Charles S. Levy, James R. Cannon, Jr., Jonathan M.
Zielinsky, and Nina R. Tandon, Cassidy Levy Kent (USA) LLP, of Washington, DC for
Defendant-Intervenors the American Sugar Coalition, American Sugar Cane League,
American Sugarbeet Growers Association, American Sugar Refining, Inc., Florida Sugar
Cane League, Rio Grande Valley Sugar Growers, Inc., Sugar Cane Growers Cooperative
of Florida, and the United States Beet Sugar Association.
Rosa S. Jeong and Irwin P. Altschuler, Greenberg Traurig, LLP, of Washington,
DC for Defendant-Intervenor Cámara Nacional de Las Industrias Azucarera y Alcoholera.
Gregory J. Spak, Kristina Zissis, and Ron Kendler, White & Case LLP, of
Washington, DC for Defendant-Intervenor Imperial Sugar Company.
Court No. 17-00214 Page 2
Stephan E. Becker and Sahar J. Hafeez, Pillsbury Winthrop Shaw Pittman, LLP,
of Washington, DC for Defendant-Intervenor Government of Mexico.
Gordon, Judge: Before the court is the motion of Plaintiff CSC Sugar LLC
(“Plaintiff” or “CSC Sugar”) to complete the administrative record filed by the
U.S. Department of Commerce (“Commerce”) in this action challenging Commerce’s
determination to amend the suspension agreement regarding the countervailing duty
investigation on Sugar From Mexico. See Sugar from Mexico, 82 Fed. Reg. 31,942,
PD 95 1 (Dep’t of Commerce July 11, 2017) (amendment to the CVD Suspension
Agreement) (“CVD Amendment”); Pl.’s Mot. to Complete Admin. R., ECF Nos. 36 & 37
(“Pl.’s Mot.”); see also Def.’s Resp. to Pl.’s Mot. to Complete Admin. R., ECF No. 51
(“Def.’s Resp.”); Def.-Intervenor Cámara Nacional de Las Industrias Azucarera y
Alcoholera Resp. Opp. Pl.’s Mot. to Complete Admin R., ECF No. 49 (“Cámara Resp.”);
Def.-Intervenors American Sugar Coalition, American Sugar Cane League, American
Sugarbeet Growers Association, American Sugar Refining, Inc., Florida Sugar Cane
League, Rio Grande Valley Sugar Growers, Inc., Sugar Cane Growers Cooperative of
Florida, and the United States Beet Sugar Association’s Resp. Opp. Pl.’s Mot. to
Complete Admin R., ECF No. 50 (“ASC Resp.”); Def.-Intervenor Gov’t of Mexico Resp.
Opp. Pl.’s Mot. to Complete Admin R., ECF No. 48; Pl.’s Reply in Supp. of Mot. to
Complete Admin. R., ECF No. 55 (“Pl.’s Reply”). The court has jurisdiction over this matter
1 “PD ___” refers to a document contained in the public administrative record, which is
found in ECF No. 33-1, unless otherwise noted. “CD ___” refers to a document contained
in the confidential administrative record, which is found in ECF No. 33-2, unless otherwise
noted.
Court No. 17-00214 Page 3
pursuant to Section 516A(a)(2)(B)(iv) of the Tariff Act of 1930, as amended,
19 U.S.C. § 1516a(a)(2)(B)(iv), and 28 U.S.C. § 1581(c) (2012). 2 For the reasons set forth
below, the court grants Plaintiff’s Motion to Complete the Administrative Record in part
and denies it in part.
I. Background
In 2014, after the American Sugar Coalition, and its members (collectively, “ASC”),
filed a petition with Commerce and the U.S. International Trade Commission ("ITC"), the
agencies conducted an investigation as to whether imports of sugar from Mexico were
being subsidized, and whether such imports were injurious to the U.S. industry.
Commerce preliminarily determined that countervailable subsidies were being supplied
to producers and exporters of sugar from Mexico. See Sugar From Mexico: Preliminary
Affirmative Countervailing Determination and Alignment of Final Countervailing Duty
Determination With Final Antidumping Duty Determination, 79 Fed. Reg. 51,956 (Dep’t of
Commerce Sept. 2, 2014). Commerce and the Government of Mexico subsequently
signed a suspension agreement. See Sugar From Mexico: Suspension of Countervailing
Duty Investigation, 79 Fed. Reg. 78,044 (Dep’t of Commerce Dec. 29, 2014)
(“CVD Suspension Agreement”).
In January 2015, Imperial Sugar Company and AmCane Sugar LLC, requested a
review by the ITC of the CVD Suspension Agreement to determine whether that
agreement had completely eliminated the injurious effects of imports of sugar from
2Further citations to the Tariff Act of 1930, as amended, are to the relevant provisions of
Title 19 of the U.S. Code, 2012 edition.
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Mexico. See Sugar from Mexico: Continuation of Antidumping and Countervailing Duty
Investigations, 80 Fed. Reg. 25,278, 25,280 (Dep’t of Commerce May 4, 2015).
Thereafter, the ITC concluded that the CVD Suspension Agreement had indeed
eliminated completely the injurious effects of imports of sugar from Mexico. Id.
In early 2016, Imperial Sugar, AmCane, and ASC requested that Commerce
initiate an administrative review of the CVD Suspension Agreement covering the period
from December 19, 2014 to December 31, 2014. See Initiation of Antidumping and
Countervailing Duty Administrative Reviews, 81 Fed. Reg. 6,832, 6,839 & n.9 (Dep’t of
Commerce Feb. 9, 2016). During the pendency of the administrative review, the United
States began direct negotiations with both the Government of Mexico and producers and
exporters of sugar from Mexico regarding possible amendment of the CVD Suspension
Agreement. On March 9, 2017, the U.S. Secretary of Commerce met with his Mexican
counterpart to announce “a new round of negotiations regarding the serious issues
identified with the functioning of the current [suspension] agreements on sugar from
Mexico.” Sugar from Mexico: Meeting with Secretary Wilbur Ross, PD 58 (Dep’t of
Commerce Apr. 4, 2017). Commerce then notified representatives of Mexican producers
and exporters of sugar and the Government of Mexico that Commerce intended to
terminate the CVD Suspension Agreement on June 5, 2017, unless a revised agreement
was reached by that date, citing “outstanding issues between the parties.” See Letter from
Commerce to Gov’t of Mexico re: termination of CVD Suspension Agreement, PD 59
(May 1, 2017).
Court No. 17-00214 Page 5
By mid-June 2017, Commerce and the Government of Mexico had reached
agreement on these issues and initialed draft amendments to the CVD Suspension
Agreement. The draft amendments proposed, among other items, that the definition of
"refined sugar" be changed to 99.2 degrees polarity, even though 99.5 degrees polarity
had been the definition since the investigation began in 2014. See Pl.’s Mot. at 3–4.
In keeping with the notice and comment requirements of 19 U.S.C. § 1671c(e)(3),
Commerce invited interested parties to comment on the draft amendments as well as
draft memoranda explaining how the revisions to the CVD Suspension Agreement met
the relevant statutory requirements. See Def.’s Resp. at 6–7. After considering comments
from interested parties, Commerce, on June 30, 2017, signed final amendments to the
CVD Suspension Agreement. CVD Amendment, 82, Fed. Reg. at 31,942. In August 2017,
Commerce released final memoranda explaining how the amended agreement met the
relevant statutory requirements, and addressing individual comments from the parties.
See Def.’s Resp. at 7 (citing explanatory memoranda available at PD 101–103).
Subsequently, CSC Sugar commenced this action, challenging Commerce’s amendment
to the CVD Suspension Agreement. See Compl., ECF No. 11. Commerce then filed the
administrative record that was in turn followed by Plaintiff’s motion to complete the record.
See Admin. R. Index, ECF No. 33; see also Pl.’s Mot.
II. Standard of Review
“Where an agency presents a certified copy of the complete administrative record,
as was done in this case, ‘the court assumes the agency properly designated the
Administrative Record absent clear evidence to the contrary.’” Defenders of Wildlife v.
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Dalton, 24 CIT 1116, 1119 (2000) (quoting Ammex, Inc. v. United States, 23 CIT 549,
555, 62 F. Supp. 2d 1148, 1156 (1999)). To prevail on “a motion to complete the
administrative record, ‘a party must do more than simply allege that the record is
incomplete. Rather, a party must provide the Court with reasonable, non-speculative
grounds to believe that materials considered in the decision-making process are not
included in the record.’” Id. (quoting Ammex, 23 CIT at 556, 62 F. Supp. 2d at 1156–57).
Separately, the two-step framework provided in Chevron, U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 842–45 (1984), governs judicial review of
Commerce's interpretation of the countervailing duty statute. See United States v. Eurodif
S.A., 555 U.S. 305, 316 (2009) (An agency's “interpretation governs in the absence of
unambiguous statutory language to the contrary or unreasonable resolution of language
that is ambiguous.”).
III. Discussion
CSC Sugar contends that Commerce did not meet its obligation to file a complete
administrative record with the court as required by 19 U.S.C. § 1516a(b)(2)(A)(i) and
USCIT Rule 73.2(a). See Pl.’s Mot. at 10–11. Specifically, Plaintiff argues that Commerce
failed to memorialize and include in the record ex parte communications between
Commerce officials and interested parties (including the domestic sugar industry and
representatives of Mexico) as required by 19 U.S.C. § 1677f(a)(3). Id. at 7–11. In support
of its contention, Plaintiff relies on a Financial Times article dated May 31, 2017 that
specifically reports on phone calls in May 2017 between the U.S. Secretary of Commerce,
U.S. sugar industry representatives, and Mexican sugar industry representatives
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regarding negotiations to amend the CVD Suspension Agreement. See Pl.’s Mot. at Ex.
2 (“Financial Times article”).
The Government does not dispute that these ex parte calls occurred. See generally
Def.’s Resp. Given this, Plaintiff maintains that under the plain language of §§ 1516a(b)(2)
and 1677f(a)(3), Commerce failed to provide the court with the requisite complete “copy
of all information presented to or obtained by [Commerce] … including … the record of
ex parte meetings required to be kept by section 1677f(a)(3).” See 19 U.S.C.
§ 1516a(b)(2)(A)(i); accord USCIT R. 73.2(a)(1); see also 19 U.S.C. § 1677f(a)(3). In
response, the Government contends that Plaintiff’s argument is fundamentally flawed
because Commerce was not required to maintain records of ex parte meetings that
occurred during the course of suspension agreement negotiations. See generally Def.’s
Resp. at 11–26. Specifically, the Government maintains that § 1516(b)(2) and
§ 1677f(a)(3)’s requirements do not apply to negotiations of a suspension agreement or
amendments. The Government further argues that suspension agreement proceedings
are free from statutory recordkeeping requirements other than the minimal notice and
comment requirements required by 19 U.S.C. § 1671c(e), which details the procedures
that Commerce is required to follow before suspending a countervailing duty
investigation. See id. at 11–22; 19 U.S.C. § 1671c(e).
As a threshold matter, ASC contends that Plaintiff has failed to demonstrate that
there is a “reasonable basis” in fact for the court to conclude that the administrative record
is incomplete. See ASC Resp. at 8–10. Plaintiff asks that the court take notice of the
Financial Times article describing the unrecorded ex parte communications between
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Commerce and interested parties as the “reasonable basis” justifying its motion to
complete the record. See Pl.’s Mot. at 7 n.3 (citing Nippon Steel Corp. v. United States,
24 CIT 1158, 118 F. Supp. 2d 1366 (2000) (taking judicial notice of press reports
indicating that there were ex parte meetings absent from the record)). ASC argues that
Nippon Steel is distinguishable because “there was no serious dispute the record was
incomplete” in that case. ASC Resp. at 9–10 n.6. Given the fact that the Government
does not contest that the ex parte communications at issue actually took place, 3 the court
disagrees with ASC. Accordingly, the court takes notice of the Financial Times article and
finds that there exists a sufficiently reasonable basis to believe the record is incomplete.
Turning to the legal issues presented by CSC Sugar’s motion, because Plaintiff’s
challenge and the Government’s defense both hinge on the interpretation of the
applicable statutory provisions, the court applies the two-step framework of Chevron.
Under step one of Chevron, the court considers whether Congressional intent on the
issue is clear. See Chevron, 467 U.S. at 842–43 (“First, always, is the question whether
Congress has directly spoken to the precise question at issue. If the intent of Congress
is clear, that is the end of the matter; for the court, as well as the agency, must give effect
to the unambiguously expressed intent of Congress.”). If the court cannot identify a clear
expression of Congressional intent and concludes that the statutory provision is silent or
ambiguous as to the contested issue, the court turns to the second prong of Chevron and
3 See generally Def.’s Resp. (making no arguments as to the “reasonable basis” for
Plaintiff’s motion and arguing only that the applicable statutes do not require Commerce
to place on the record any ex parte meetings and communications in connection with
suspension agreement negotiations).
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determines whether Commerce’s interpretation of the statute is reasonable. See id.
Because §§ 1516a(b)(2), 1677f(a)(3), and 1671c(e) convey clear Congressional intent to
require Commerce to maintain a complete record of suspension agreement proceedings
and related determinations, step one resolves the issue.
“In order to determine whether a statute clearly shows the intent of Congress in a
Chevron step one analysis, [the court] employ[s] traditional tools of statutory construction
and examine[s] ‘the statute's text, structure, and legislative history, and appl[ies] the
relevant canons of interpretation.’” Heino v. Shinseki, 683 F.3d 1372, 1378 (Fed. Cir.
2012) (quoting Delverde, SrL v. United States, 202 F.3d 1360, 1363 (Fed. Cir. 2000)).
Three statutory sections are implicated: 19 U.S.C. § 1516a(b)(2)(A)(i), 19 U.S.C.
§ 1677f(a)(3), and 19 U.S.C. § 1671c(e). Section 1516a(b)(2)(A)(i), which defines the
record for review in countervailing duty proceedings, provides:
(A) In general
For the purposes of this subsection, the record, unless
otherwise stipulated by the parties, shall consist of—
(i) a copy of all information presented to or obtained by
the Secretary, the administering authority, or the
Commission during the course of the administrative
proceeding, including all governmental memoranda
pertaining to the case and the record of ex parte
meetings required to be kept by section 1677f(a)(3) of
this title;
19 U.S.C. § 1516a(b)(2)(A)(i) (emphasis added). The language of this section is clear and
unambiguous. It requires that “all information presented to or obtained by” Commerce in
the course of reaching its determinations be provided to the court for review of challenges
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to those determinations. See Kao Hsing Chang Iron & Steel Corp. v. United States, 25
CIT 372, 140 F. Supp. 2d 1379 (2001) (discussing the breadth and scope of
recordkeeping obligations imposed on Commerce under § 1516a(b)(2)(A) in conjunction
with § 1677f(a)(3)).
The Government argues that suspension agreement negotiations are exempt from
the requirements of § 1516a(b)(2) because those negotiations are “confidential” in nature.
The Government, unfortunately, fails to cite or discuss 19 U.S.C. § 1516a(b)(2)(B), which
specifically addresses the inclusion of confidential and privileged materials as within the
scope of § 1516a(b)(2). See 19 U.S.C. § 1516a(b)(2)(B) (providing that recordkeeping
requirements of § 1516a(b)(2) do not disturb confidential or privileged status of materials,
but also noting that court may review such material in camera and may exercise discretion
to direct disclosure). Other than the clarification that materials required to be in the record
under § 1516a(b)(2) shall not lose their privileged or confidential status by virtue of their
inclusion in the record, § 1516a(b)(2) provides no limitations on its requirement that the
record include “all information presented to or obtained by” Commerce in the course of
the proceeding. See 19 U.S.C. § 1516a(b)(2). This section does, however, expressly
reference another statutory provision, 19 U.S.C. § 1677f(a)(3), which requires the
memorialization of ex parte meetings.
Section 1677f(a)(3) provides:
The administering authority ... shall maintain a record of any
ex parte meeting between—
(A) interested parties or other persons providing factual
information in connection with a proceeding, and
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(B) the person charged with making the determination, or any
person charged with making a final recommendation to
that person, in connection with that proceeding,
if information relating to that proceeding was presented or
discussed at such meeting. The record of such an ex parte
meeting shall include the identity of the persons present at the
meeting, the date, time, and place of the meeting, and a
summary of the matters discussed or submitted. The record
of the ex parte meeting shall be included in the record of the
proceeding.
19 U.S.C. § 1677f(a)(3); see also Nippon Steel Corp., 24 CIT at ___, 118 F. Supp. 2d at
1373 (“Any memoranda detailing ex parte communications must be a part of the record
for judicial review.”). The language of § 1677f(a)(3) is likewise clear and unambiguous:
“any ex parte meeting” that addresses factual information in connection with a
countervailing duty proceeding must be memorialized for the record by Commerce. 19
U.S.C. § 1677f(a)(3). The legislative history of § 1677f(a)(3) confirms the plain reading of
the statutory language. The Senate Report states that the purpose of the section was to
ensure the “maximum availability of information to interested parties” so that “all parties
to the proceeding are more fully aware of the presentation of information” to Commerce.
See S. Rep. 96-249, Trade Agreements Act of 1979, at 100 (July 17, 1979), reprinted in
1979 U.S.C.C.A.N. 381, 486. The legislative history further clarifies that Congress
intended § 1677f(a)(3) to cover meetings that involved the transmittal of confidential
information, and drafted the section to allow the preservation of confidentiality while also
providing a process for interested parties to at least obtain “nonconfidential summaries”
of that information. Id. The legislative history additionally confirms that § 1677f(a)(3) was
Court No. 17-00214 Page 12
enacted to guarantee broad access to information presented to the agency specifically
because the “standard of judicial review of most administrative actions in countervailing
duty … proceedings is one of review on the administrative record.” Id.
Although neither § 1516a(b)(2) nor § 1677f(a)(3) contain any exceptions or
differing criteria for various types of proceedings, the Government argues that these
sections must be read in pari materia with 19 U.S.C. § 1671c(e) to limit the proceedings
to which they apply. Section 1671c(e) governs the procedure for Commerce to suspend
a countervailing duty investigation and provides:
Before an investigation may be suspended under subsection
(b) or (c) the administering authority shall—
(1) notify the petitioner of, and consult with the petitioner
concerning, its intention to suspend the investigation, and
notify other parties to the investigation and the Commission
not less than 30 days before the date on which it suspends
the investigation,
(2) provide a copy of the proposed agreement to the
petitioner at the time of the notification, together with an
explanation of how the agreement will be carried out and
enforced, and of how the agreement will meet the
requirements of subsections (b) and (d) or (c) and (d), and
(3) permit all interested parties described in section 1677(9)
of this title to submit comments and information for the record
before the date on which notice of suspension of the
investigation is published under subsection (f)(1)(A).
19 U.S.C. § 1671c(e). There are no references to §§ 1516a(b)(2) or 1677f(a)(3) in the
text of § 1671c(e); instead, § 1671c(e) simply provides that Commerce must provide
notice and comment opportunities for all interested parties before issuing a notice of
suspension. Id. The Government nevertheless insists that the intent of § 1671c(e) was to
Court No. 17-00214 Page 13
provide the sole “notice, comment, and consultation procedures” that Commerce must
follow in suspending a countervailing duty investigation (or, in this case, amending an
existing suspension agreement). See Def.’s Resp. at 18. Specifically, the Government
contends that Congress would not have included these notice and comment procedures
in a separate section applicable to suspension agreements if it did not also intend these
procedures to be mutually exclusive with the recordkeeping requirements of
§§ 1516a(b)(2) and 1677f(a)(3). Id.
As support, the Government relies on a short quotation from the Senate Report
that emphasizes the importance of Commerce’s consultations with the petitioner prior to
adopting a suspension agreement. See id. at 15 (“the requirement that the petitioner be
consulted will not be met by pro forma communications. Complete disclosure and
discussion is required.” (quoting S. Rep. 96-249, at 54, 71, 1979 U.S.C.C.A.N. at 440,
457)). The Government’s reliance on this language is perplexing because, to the extent
that it is relevant at all, it suggests that Congress had no intention for suspension
agreement negotiations to bypass any statutory recordkeeping requirements. The
Government argues that “Congress[’] emphas[is on] communications with the petitioner
in the congressional reports accompanying the legislation makes sense only if
Commerce’s suspension agreement negotiations are otherwise off-the-record.” Id.
However, the Government’s reading of this language strains credulity, as it ignores
conflicting language in the Senate Report as well as the broader context of the statutory
provisions regarding suspension agreements.
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Prior to the passage of the Trade Agreements Act of 1979, the international trade
law statutes did not permit suspension of investigations. See S. Rep. 96-249, at 51, 71,
1979 U.S.C.C.A.N. at 437, 457. In enacting § 1671c, Congress emphasized that
suspension agreements were intended only for “unusual” and “narrowly circumscribed”
circumstances. Id. at 71. Given this broader context, the Senate Report’s emphasis on
the importance of Commerce guaranteeing “complete disclosure and discussion” with
petitioners in the suspension agreement process can best be understood as providing
additional protections to the domestic industry. Id. Rather than justifying off-the-record
communications as the basis for structuring suspension agreements, the legislative
history of § 1671c suggests that Congress aimed to ensure that Commerce would not
abuse its newly granted power to suspend investigations or restrict interested parties’
access to relevant information in connection with a proposed suspension agreement. The
Government has not identified, nor has the court found, anything in the legislative history
of § 1671c that suggests that suspension agreement negotiations were intended to be
exempt from the generally applicable recordkeeping requirements of §§ 1516a(b)(2) and
1677f(a)(3).
The Government also relies on the history of Commerce’s regulations, 19 C.F.R.
§§ 351.208–.209, implementing § 1671c. See Def.’s Resp. at 23. Problematically, the
Government’s argument that “Commerce has long interpreted section 1671c(e) to mean
that the negotiation of a suspension agreement is not subject to the record requirements
of section 1516a(b)(2),” finds no support in the cited regulatory history. See id. (citing
Antidumping Duties; Countervailing Duties, 62 Fed. Reg. 27,296, 27,312 (Dep’t of
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Commerce May 19, 1997) (preamble to rulemaking adopting 19 C.F.R. §§ 351.208–
.209)). That history fails to refer to § 1516a(b)(2) or otherwise corroborate the
Government’s position. See Antidumping Duties; Countervailing Duties, 62 Fed. Reg.
27,296, 27,312 (Dep’t of Commerce May 19, 1997). Accordingly, the court does not agree
that the language and legislative history of § 1671c(e) , or its implementing regulations,
support the Government’s position.
The Government also misreads the statute when it argues that § 1671c(e)’s due
process protections of notice and comment prior to a determination to suspend a
countervailing duty investigation somehow conflict or render “superfluous” the
recordkeeping requirements established in §§ 1516a(b)(2) and 1677f(a)(3). See Def.’s
Resp. at 18. Section 1516a(b)(2), as described previously, defines the scope of the
administrative record for the judicial review of countervailing duty proceedings.
19 U.S.C. § 1516a(b)(2). Included within the scope of the administrative record is a
reference to § 1677f(a)(3), which requires that Commerce must maintain records of ex
parte communications relating to countervailing duty proceedings. 19 U.S.C.
§ 1677f(a)(3). Taken together, §§ 1516(a)(b)(2) and 1677f(a)(3) provide the generally
applicable recordkeeping requirements for Commerce’s countervailing duty proceedings.
Section 1671c, on the other hand, does not address general recordkeeping
requirements, but rather focuses on Commerce’s ability to suspend or terminate
countervailing duty investigations. 19 U.S.C. § 1671c. Section 1671c(e) specifically
provides that Commerce must afford notice and comment to petitioners and other
interested parties before suspending an investigation. 19 U.S.C. § 1671c(e). These
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notice and comment requirements do not serve to replace the recordkeeping
requirements generally established in § 1516a(b)(2); instead, § 1671c(e) affords
interested parties additional due process protections before Commerce may suspend a
countervailing duty investigation. See S. Rep. 96-249, at 51, 1979 U.S.C.C.A.N. at 437.
Accordingly, the court rejects the Government’s attempt to frame § 1671c(e) as somehow
incompatible with or mutually exclusive of the recordkeeping requirements applicable to
all countervailing duty proceedings in §§ 1516a(b)(2) and 1677f(a)(3).
Additionally, the court rejects the Government’s argument that suspension
agreement proceedings under § 1671c are not governed by the record requirements of
§§ 1516a(b)(2) and 1677f(a)(3) for two other reasons. First, 19 U.S.C. § 1516a(a)(2)(B)
lists the reviewable determinations that may be contested before the U.S. Court of
International Trade. Specifically, § 1516a(a)(2)(B)(iv) provides that an interested party
may challenge a determination by Commerce “under section 1671c or 1673c of this title,
to suspend an antidumping duty or a countervailing duty investigation, including any final
determination resulting from a continued investigation which changes the size of the
dumping margin or net countervailable subsidy calculated, or the reasoning underlying
such calculations, at the time the suspension agreement was concluded.” 19 U.S.C.
§ 1516a(a)(2)(B)(iv). The plain language of § 1516a provides that Commerce’s
determinations involving suspension agreements are reviewable determinations, and the
Government fails to point out any statutory language indicating Congressional intent to
provide for different recordkeeping requirements for suspension agreement
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determinations as compared with any other reviewable determination listed under
§ 1516a(a).
Second, despite the Government’s primary argument that suspension agreement
proceedings are not governed by § 1677f(a)(3)’s recordkeeping requirements, the
Government’s actual recordkeeping conflicts with its claimed statutory interpretation.
Commerce memorialized two ex parte meetings in this matter prior to the issuance of the
final determination adopting the amendment to the CVD Suspension Agreement: one
regarding a meeting between representatives of Mexico and Secretary of Commerce
Ross in March 2017, and another regarding a discussion between Commerce officials
and representatives of the domestic sugar industry in the “Sugar Users Association” in
June 2017. See Sugar From Mexico: Meeting with Secretary Wilbur Ross, PD 58 (Dep’t
of Commerce Apr. 4, 2017); Sugar from Mexico: Ex-parte Memo, PD 76 (Dep’t of
Commerce June 21, 2017). The Government insists that no “substantive discussion” of
the suspension agreement amendments occurred at these two ex parte meetings.
Therefore, the Government maintains that memorializing these meetings was not
inconsistent with its position that suspension agreement proceedings fall outside the
scope of the recordkeeping requirements of §§ 1516a(b)(2) or 1677f(a)(3). See Def.’s
Resp. at 26–27. The Government emphasizes that these two ex parte meeting
memoranda do not “memorialize[] deliberative discussion in any manner that would
undermine an ongoing negotiation,” and are thus distinct from the additional records
sought by CSC Sugar. Id. at 27. The Government’s argument, however, ignores the plain
language requirement of § 1677f(a)(3), which applies to all ex parte communications
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involving the provision of “factual information in connection with a proceeding” and
requires the memorialization of no more and no less than “the identity of the persons
present at the meeting, the date, time, and place of the meeting, and a summary of the
matters discussed or submitted.” 19 U.S.C. § 1677f(a)(3). The statute does not
differentiate between substantive and non-substantive ex parte meetings.
Aside from their statutory interpretation arguments, the Government and
Defendant-Intervenors advance similar contentions that suspension agreement
negotiations are in some way inherently privileged or confidential and are thus exempt
from statutorily mandated recordkeeping and disclosure. See Def.’s Resp. at 19–20, 22–
26; ASC Resp. at 6–8 (“Any Communications Between Commerce and the Parties During
the Negotiations to Amend the Suspension Agreements are Privileged”); Cámara Resp.
at 6–8 (similarly suggesting that suspension agreement negotiations are akin to
confidential settlement agreement discussions, or alternatively, that these negotiations
are protected by the deliberative process privilege). Because Commerce failed to place
on the record memoranda for the ex parte communications at issue that included at least
the non-confidential information required by § 1677f(a) (i.e., a summary memorandum
listing the date, time, and participants to the communication, as well as a non-confidential
summary of general matters discussed), the court cannot reach the question of whether
any specific content is protected from disclosure as confidential or privileged. See 19
U.S.C. § 1677f(a)(3). Both the statute, as well as Commerce’s regulation defining the
official record for review for determinations challenged before this Court, are clear: the
record includes “all information presented to or obtained by” the agency, including
Court No. 17-00214 Page 19
confidential and privileged material. See 19 U.S.C. § 1516a(b)(2); 19 C.F.R. § 351.104(a)
(“The official record will include government memoranda pertaining to the proceeding,
memoranda of ex parte meetings, determinations, notices published in the Federal
Register, and transcripts of hearings. The official record will contain material that is public,
business proprietary, privileged, and classified.”).
Accordingly, once the Government has filed the requisite non-confidential
information required by §§ 1516a(b)(2) and 1677f(a)(3), as part of the administrative
record in this action, it may seek protection for any substantive confidential and privileged
information that may otherwise be required for disclosure by those statutory provisions.
See 19 U.S.C. § 1516a(b)(2)(B) (stating that privileged or confidential information may
retain the appropriate protections from disclosure, and that the court “may examine, in
camera, the confidential or privileged material, and may disclose such material under
such terms and conditions as it may order.”); Pl.’s Reply at 11 (“to the extent that
confidentiality, as opposed to privilege, is the issue, information may be released under
an administrative protective order to counsel to protect confidentiality”); see also
USX Corp. v. United States, 11 CIT 419, 664 F. Supp. 519 (1987) (analyzing
government’s claim of deliberative process privilege after government conceded that
documents should be on the record but protected from public disclosure under §
1516a(b)(2)); Star-Kist Foods, Inc. v. United States, 8 CIT 305, 600 F. Supp. 212 (1984)
(discussing the court’s authority to order disclosure of confidential documents under
§ 1516a(b)(2) and analyzing the assertion of privilege after the Government had added
public and confidential versions of the contested documents to the record). In asserting
Court No. 17-00214 Page 20
privilege claims the Government carries the burden of proof and must provide a specific
basis for claiming privilege applies. See United States v. Greenlight Organic, Inc., 41 CIT
___, ___, 279 F. Supp. 3d 1317, 1320 (2017) (“In order to invoke executive privilege, the
party claiming it must (1) make a formal claim of privilege via the head of the agency or
his delegate, (2) submit an affidavit showing ‘actual personal consideration by that
official,’ and (3) provide a detailed explanation of what the document is and why it falls
within the scope of the privilege.” (citing Landry v. F.D.I.C., 204 F.3d 1125, 1135 (D.C.
Cir. 2000)). 4
As a final note, the court observes that in addition to requesting an order requiring
Commerce to memorialize and include in the record memoranda regarding ex parte
communications in Commerce’s negotiation of the CVD Amendment during April and May
2017, CSC Sugar also requests that the court direct Commerce to add to the record ex
parte memoranda published after Commerce’s final determination adopting the
CVD Amendment. See Pl.’s Br. at 8. The court rejects Plaintiff’s suggestion that the
record should include any ex parte memoranda created after the challenged final
determination that was published on July 11, 2017. See Torrington Co. v. United States,
4 The court notes that although Defendant-Intervenors suggest that some form of privilege
may protect the information at issue in Plaintiff’s motion, the Government has failed to
identify or assert any particular claim of privilege in its briefing. See generally Def.’s Resp.
Without further comment, the court also observes that in Baker & Hostetler LLP v. Dep’t
of Commerce, 473 F.3d 312 (D.C. Cir 2006), a case cited favorably by the Government
in its response brief, the Commerce Department took the express position that the record
requirement of § 1677f(a)(3) is a “public record” that would not be limited by
§ 1516a(b)(2)(B)’s preservation of otherwise confidential or privileged materials. See
Baker & Hostetler LLP, 473 F.3d at 322 (quoting the Commerce Department’s brief).
Court No. 17-00214 Page 21
16 CIT 76, 77-78, 786 F. Supp. 1027, 1029 (1992) (“Any information received by
Commerce after the particular determination at issue is not part of the reviewable
administrative record.” (citing Ipsco, Inc. v. United States, 13 CIT 489, 494, 715 F. Supp.
1104, 1109 (1989))).
Court No. 17-00214 Page 22
IV. Conclusion
Accordingly, it is hereby
ORDERED that CSC Sugar’s motion to complete the administrative record is
granted in part and denied in part; it is further
ORDERED that Commerce shall supplement the administrative record on or
before July 11, 2018 by filing with the court the record of any ex parte meetings about the
CVD Amendment; and it is further
ORDERED that the parties shall file a proposed scheduling order governing further
proceedings in this action on or before July 18, 2018.
/s/ Leo M. Gordon
Judge Leo M. Gordon
Dated: June 1, 2018
New York, New York