317 F. Supp. 3d 1322
Ct. Int'l Trade2018Background
- In 2014 Commerce preliminarily found sugar from Mexico was dumped and later entered a suspension agreement with Mexico; the agreement defined "refined sugar" at 99.5 degrees polarity.
- In 2016–2017 Commerce negotiated amendments to the suspension agreement, including changing "refined sugar" to 99.2 degrees polarity, and on June 30, 2017 signed the amendments (published July 11, 2017).
- CSC Sugar sued, challenging Commerce’s AD Amendment and moved to complete the administrative record, alleging Commerce failed to include memorialized ex parte communications required by statute.
- The Government acknowledged that certain ex parte phone calls occurred but argued that statutory recordkeeping requirements for antidumping proceedings did not apply to suspension-agreement negotiations and that negotiations were confidential.
- The court applied Chevron, examined 19 U.S.C. §§ 1516a(b)(2), 1677f(a)(3), and 1673c(e), and concluded the recordkeeping statutes clearly require memorializing ex parte meetings and including them in the administrative record even for suspension-agreement negotiations.
- The court ordered Commerce to supplement the administrative record by filing records of any ex parte meetings concerning the AD Amendment (non-confidential material), while preserving Commerce’s ability to claim privilege or confidentiality for specific content and seek in camera review or protective orders.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Commerce must include memorialized ex parte communications from suspension-agreement negotiations in the administrative record under 19 U.S.C. §§ 1516a(b)(2) and 1677f(a)(3) | CSC: §§ 1516a(b)(2) and 1677f(a)(3) require memorializing and including all ex parte meetings discussing factual information; the record is incomplete without them | U.S.: Suspension-agreement negotiations are exempt; § 1673c(e)'s notice/comment procedures are the sole requirements for suspension proceedings; negotiations are confidential/privileged | Held: Court rejects exemption; §§ 1516a(b)(2) and 1677f(a)(3) apply; Commerce must supplement the record with ex parte meeting memoranda (non-confidential summaries), subject to privilege/confidentiality claims |
| Whether § 1673c(e) supersedes or limits the general recordkeeping duties of §§ 1516a(b)(2) and 1677f(a)(3) | CSC: § 1673c(e)'s notice/comment rights are additional, not exclusive; do not displace record requirements | U.S.: § 1673c(e) intended to set the notice/comment regime for suspension agreements and thus implies off-the-record negotiations | Held: Court finds no textual or legislative-history basis to read § 1673c(e) as displacing recordkeeping duties; it provides additional protections but does not supplant § 1516a/§ 1677f |
| Whether Commerce’s prior memorialization of some ex parte meetings is inconsistent with its claimed exemption | CSC: Selective memorialization shows Commerce understood § 1677f(a)(3) applies | U.S.: The memorialized meetings were non-substantive; broader negotiations need not be memorialized | Held: Statute does not distinguish substantive vs. non‑substantive meetings; selective memorialization undermines claimed exemption and supports supplementation |
| Whether documents created after the challenged final determination must be added to the record | CSC: Requests post-decision ex parte memoranda be included | U.S.: Post-decision materials are not part of the reviewable record | Held: Court rejects inclusion of ex parte memoranda created after the challenged final determination; only pre-decision materials are part of the administrative record |
Key Cases Cited
- Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984) (two-step framework for reviewing agency statutory interpretation)
- United States v. Eurodif S.A., 555 U.S. 305 (2009) (agency interpretation governs absent unambiguous congressional intent to the contrary)
- Heino v. Shinseki, 683 F.3d 1372 (Fed. Cir. 2012) (Chevron step-one statutory-construction methodology)
- Nippon Steel Corp. v. United States, 118 F. Supp. 2d 1366 (2000) (press reports may support notice of unrecorded ex parte meetings; ex parte memoranda must be part of the record)
- Baker & Hostetler LLP v. Department of Commerce, 473 F.3d 312 (D.C. Cir. 2006) (Commerce has characterized § 1677f(a)(3) record requirement as part of the public record; cited regarding scope of ex parte memorialization)