CSC Sugar LLC v. United States

Slip Op. 18-65

UNITED STATES COURT OF INTERNATIONAL TRADE

CSC SUGAR LLC,

Plaintiff, Before: Leo M. Gordon, Judge

v. Court No. 17-00215

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 Lydia Caprice Pardini, 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. 17-00215 Page 2

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 114 1 (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, 19 U.S.C.

§ 1516a(a)(2)(B)(iv), and 28 U.S.C. § 1581(c) (2012). 2 For the reasons set forth below,

1 “PD ___” refers to a document contained in the public administrative record, which is
found in ECF No. 29-1, unless otherwise noted. “CD ___” refers to a document contained
in the confidential administrative record, which is found in ECF No. 29-2, unless otherwise
noted.
2 Further citations to the Tariff Act of 1930, as amended, are to the relevant provisions of

Title 19 of the U.S. Code, 2012 edition.
Court No. 17-00215 Page 3

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 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.
Court No. 17-00215 Page 4

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.
Court No. 17-00215 Page 5

In keeping with the notice and comment requirements of 19 U.S.C. § 1673c(e)(3),

Commerce invited interested parties to comment on the draft amendments as well as

draft memoranda explaining how the revisions to the AD 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

AD Suspension Agreement. AD Amendment, 82 Fed. Reg. at 31,945. 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 119–122).

Subsequently, CSC Sugar commenced this action, challenging Commerce’s amendment

to the AD Suspension Agreement. See Compl., ECF No. 11. 3 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. 29; see also Pl.’s Mot.

3CSC Sugar also filed a parallel action, Court No. 17-00214, challenging Commerce’s
amendment to the CVD Suspension Agreement, which is addressed in this Court’s
decision in Slip Op. 18-64, also issued this date.
Court No. 17-00215 Page 6

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 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
Court No. 17-00215 Page 7

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

regarding negotiations to amend the AD 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. § 1673c(e), which details the procedures

that Commerce is required to follow before suspending an antidumping duty investigation.

See id. at 11–22; 19 U.S.C. § 1673c(e).
Court No. 17-00215 Page 8

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

4 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).
Court No. 17-00215 Page 9

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: 19 U.S.C. § 1516a(b)(2)(A)(i), 19 U.S.C.

§ 1677f(a)(3), and 19 U.S.C. § 1673c(e). Section 1516a(b)(2)(A)(i), which defines the

record for review in antidumping 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
Court No. 17-00215 Page 10

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

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

an antidumping duty proceeding. See 19 U.S.C. § 1516a(b)(2). This section does,
Court No. 17-00215 Page 11

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

(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 an

antidumping 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
Court No. 17-00215 Page 12

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 19 U.S.C. § 1673c(e) to limit the proceedings

to which they apply. Section 1673c(e) governs the procedure for Commerce to suspend

an antidumping 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
Court No. 17-00215 Page 13

before the date on which notice of suspension of the
investigation is published under subsection (f)(1)(A).

19 U.S.C. § 1673c(e). There are no references to §§ 1516a(b)(2) or 1677f(a)(3) in the

text of § 1673c(e); instead, § 1673c(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 § 1673c(e) was to

provide the sole “notice, comment, and consultation procedures” that Commerce must

follow in suspending an antidumping 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
Court No. 17-00215 Page 14

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.

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).
Court No. 17-00215 Page 15

The Government also relies on the history of Commerce’s regulations, 19 C.F.R.

§§ 351.208–.209, implementing § 1673c. See Def.’s Resp. at 23. Problematically, the

Government’s argument that “Commerce has long interpreted section 1673c(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

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 § 1673c(e), or its implementing regulations,

support the Government’s position.

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 Resp. at 18.

Section 1516a(b)(2), as described previously, defines the scope of the administrative

record for the judicial review of antidumping 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 antidumping duty proceedings. 19 U.S.C. § 1677f(a)(3). Taken together,
Court No. 17-00215 Page 16

§§ 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. 19 U.S.C. § 1673c. Section 1673c(e) specifically

provides that Commerce must afford notice and comment to petitioners and other

interested parties before suspending an investigation. 19 U.S.C. § 1673c(e). These

notice and comment requirements do not serve to replace the recordkeeping

requirements generally established in § 1516a(b)(2). Instead, § 1673c(e) affords

interested parties additional due process protections before Commerce may suspend an

antidumping investigation. See S. Rep. 96-249, at 71, 1979 U.S.C.C.A.N. at 457.

Accordingly, the court rejects the Government’s attempt to frame § 1673c(e) as somehow

incompatible with or mutually exclusive of the recordkeeping requirements applicable to

all antidumping duty proceedings in §§ 1516a(b)(2) and 1677f(a)(3).

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, 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
Court No. 17-00215 Page 17

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

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 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
Court No. 17-00215 Page 18

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

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
Court No. 17-00215 Page 19

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

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
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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

5 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. 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, Commerce 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).
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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))).
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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

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