CSC Sugar LLC v. United StatesCSC Sugar LLC v. United States
OPINION and ORDER
[Plaintiff’s motion to complete the administrative record is granted in part and denied in part.]
Dated: June 1, 2018
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.
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 antidumping duty investigation on Sugar From Mexico. See Sugar from Mexico, 82 Fed. Reg. 31,945, PD 1141 (Dep’t of Commerce July 11, 2017) (amendment to the AD Suspension Agreement) (“AD Amendment”); Pl.’s Mot. to Complete Admin. R., ECF Nos. 32 & 33 (“Pl.’s Mot.”); see also Def.’s Resp. to Pl.’s Mot. to Complete Admin. R., ECF No. 46 (“Def.’s Resp.”); Def.-Intervenor Cámara Nacional de Las Industrias Azucarera y Alcoholera Resp. Opp. Pl.’s Mot. to Complete Admin R., ECF No. 44 (“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. 45 (“ASC Resp.”); Pl.’s Reply in Supp. of Mot. to Complete Admin. R., ECF No. 50 (“Pl.’s Reply”). The court has jurisdiction over this matter pursuant to Section 516A(a)(2)(B)(iv) of the Tariff Act of 1930, as amended,
the court grants Plaintiff’s Motion to Complete the Administrative Record in part and denies it in part.
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 sold at less than fair value, and whether such imports were injurious to the U.S. industry. Commerce preliminarily determined that sugar from Mexico was being sold, or likely to be sold, into the United States at less than fair value. See Sugar From Mexico: Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination, 79 Fed. Reg. 65,189 (Dep’t of Commerce Nov. 3, 2014). Commerce and the Government of Mexico subsequently signed a suspension agreement. See Sugar From Mexico: Suspension of Antidumping Investigation, 79 Fed. Reg. 78,039 (Dep’t of Commerce Dec. 29, 2014) (“AD Suspension Agreement”).
In January 2015, Imperial Sugar Company and AmCane Sugar LLC, requested a review by the ITC of the AD Suspension Agreement to determine whether that agreement had completely eliminated the injurious effects of imports of sugar from 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 AD 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 AD 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 AD 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 77 (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 AD 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 Juan Cortina Gallardo and Additional Signatories re: termination of AD Suspension Agreement, PD 78 (May 1, 2017).
By mid-June 2017, Commerce and the Government of Mexico had reached agreement on these issues and initialed draft amendments to the AD 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
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. 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 antidumping 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
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
In response, the Government contends that Plaintiff’s argument is fundamentally flawed because Commerce was not required
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 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,4 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 determines whether Commerce’s interpretation of the statute is reasonable. See id. Because §§ 1516a(b)(2), 1677f(a)(3), and 1673c(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:
(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;
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
however, expressly reference another statutory provision,
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
(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.
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 enacted to guarantee broad access to information presented to the agency specifically because the “standard of judicial review of most administrative actions in … antidumping 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
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).
in the congressional reports accompanying the legislation makes sense only if Commerce’s suspension agreement negotiations are otherwise off-the-record.”
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 § 1673c, 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 § 1673c 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 § 1673c 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,
The Government also misreads the statute when it argues that § 1673c(e)’s due process protections of notice and comment prior to a determination to suspend an antidumping investigation somehow conflict or render “superfluous” the recordkeeping requirements established in §§ 1516a(b)(2) and 1677f(a)(3). See Def.’s
§§ 1516(a)(b)(2) and 1677f(a)(3) provide the generally applicable recordkeeping requirements for Commerce’s antidumping duty proceedings.
Section 1673c, on the other hand, does not address general recordkeeping requirements, but rather focuses on Commerce’s ability to suspend or terminate antidumping duty investigations.
Additionally, the court rejects the Government’s argument that suspension agreement proceedings under § 1673(c) are not governed by the record requirements of §§ 1516a(b)(2) and 1677f(a)(3) for two other reasons. First,
dumping margin or net countervailable subsidy calculated, or the reasoning underlying such calculations, at the time the suspension agreement was concluded.”
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 AD 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 77 (Dep’t of Commerce Apr. 4, 2017); Sugar from Mexico: Ex-parte Memo, PD 95 (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.
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
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
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 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))).5
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 AD 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 AD 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, 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))).
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 AD Amendment; and it is further
/s/ Leo M. Gordon
Judge Leo M. Gordon
Dated: June 1, 2018
New York, New York