Grupo Simec S.A.B. de C.V. v. United States

Slip-Op. 23-11

UNITED STATES COURT OF INTERNATIONAL TRADE

GRUPO ACERERO S.A. de C.V.,
GRUPO SIMEC S.A.B. de C.V., et al.,

Plaintiffs,
and

GERDAU CORSA, S.A.P.1. de C.V.,
Before: Stephen Alexander Vaden,
Judge

Plaintiff-Intervenor,

% Consol. Court No. 1:22-cv-00202
UNITED STATES,

Defendant,
and

REBAR TRADE ACTION COALITION,

Defendant-Intervenor.

OPINION
[Granting Defendant's Motion to Correct the Record.]

Dated: January 27, 2023

f
James L. Rogers, Jr., Nelson Mullins Riley & Scarborough LLP, of Greenville, SC, for
the Joint Plaintiffs. With him on the brief were Irene H. Chen, VCL Law LLP, Mark
B. Lenhart, Law Offices of David L. Simon, LLP, and Craig A. Lewis, Hogan Lovells
US LLP.

Kara M. Westercamp, Trial Attorney, U.S. Department of Justice, of Washington, DC,
for the Defendant. With her on the brief were Brian M. Boynton, Principal Deputy
Assistant Attorney General, Patricia M. McCarthy, Director, L. Misha Preheim,
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Assistant Director, U.S. Department of Justice, Commercial Litigation Branch, and
lan A. McInerney, Of Counsel, U.S. Department of Commerce, Office of the Chief
Counsel for Trade Enforcement and Compliance.

John R. Shane, Wiley Rein LLP, of Washington, DC, for the Defendant-Intervenor.
With him on the brief were Alan H. Price, Maureen O. Thorson, Jeffrey O. Frank, and
Paul J, Coyle.

Vaden, Judge: On August 8, 2022, Grupo Simec 8.A.B. de C.V., et al.
(including fourteen subsidiaries as plaintiffs, collectively, Grupo Simec) filed a
complaint challenging the Final Results of the Department of Commerce’s
(Commerce) Administrative Review in Steel Concrete Reinforcing Bar from Mexico:
Final Resulis of Antidumping Duty Admunistrative Review; 2019-2020 (Final
Results), 87 Fed. Reg. 34,848 (June 8, 2022). Compl. § 1, ECF. No 8. On October 17,
2022, Commerce filed what it termed a “Consent Motion to Correct the Record.”
Consent Mot. to Correct the R., ECF No. 20. Plaintiffs Grupo Acerero 5.A. de C.V.
and Gerdau Corsa, 8.A.P.I. de C.V. (collectively, Consolidated Plaintiffs) consented,
but Plaintiff Grupo Simec had not consented. After an in-person status conference to
discuss the consent issue, consolidation, and a dispute over the proposed briefing
schedule, the Court ordered consolidation and set a briefing schedule for the
contested Motion to Correct the Record. See Order, ECF No. 27. Commerce now
moves to correct the record to include the Grupo Simec Questionnaire Deficiencies
Analysis (Deficiencies Memorandum) that was neither included in the administrative

record provided to the Court nor given to the parties. Def.’s Mot. Correct Record

(Def.’s Mot.) at 2, ECF No. 28. Plaintiffs oppose this Motion, claiming that Commerce
Consol. Court No. 1:22-cv-00202 Page 3

seeks to unlawfully place new factual information on the record and that Commerce
acts in bad faith. Pls.’ Resp. in Opposition to Def.’s Mot. for Leave to Correct the R.
(Pls.” Resp.) at 1-2, ECF No. 29. Defendant-Intervenor Rebar Trade Coalition (the
Coalition) supperts Commerce’s Motion. Def.-Int.’s Reply, ECF No. 34. For the
reasons that follow, Commerce’s Motion to Correct the Record is GRANTED.
BACKGROUND
I, Procedural Background

On November 6, 2014, Commerce issued an antidumping duty order on
concrete reinforcing bar (rebar) from Mexico. Steel Concrete Reinforcing Bar from
Mexico: Antidumping Duty Order, 79 Fed. Reg. 65,925 (Nov. 6, 2014). Commerce
began an annual review of the Order on January 6, 2021. Initiation of Antidumping
Duty and Countervailing Duty Administrative Reviews, 86 Fed. Reg. 511 (Jan. 6,
2021). Grupo Simec and Deacero S.A.P.I. de C.V. were selected as mandatory
respondents on February 8, 2021, and the other Consolidated Piaintiffs remained
subject to the review. See Steel Concrete Reinforcing Bar from Mexico: Preliminary
Results of Antidumping Duty Administrative Review; 2019-2020 (Preliminary
Results), 86 Fed Reg. 68,632, 68,633 (Dec. 8, 2021). In the Preliminary Results,
Commerce assigned a 66.7% dumping margin to Grupo Simec, drawing adverse
inferences from facts otherwise available. Jd. at 68,633; see also 19 U.S.C. §
1677(e)({a)(1)(B). Commerce published its Final Results on June 8, 2022, continued

to apply facts otherwise available with an adverse inference to Grupo Simec, and
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maintained its dumping margin of 66.7%. Final Results, 87 Fed. Reg. at 38,849.
Commerce then calculated a 33.85% dumping margin for the companies not selected
for individual examination by averaging the dumping margins of Grupo Simec and
Deacero, which received a 0% dumping margin. Jd. at 38,849-50.

On August 8, 2022, Grupo Simec filed a complaint challenging Commerce’s
Final Results. Compl. 9] 8-11, ECF No. 8. The Coalition intervened as Defendant-
Intervenor on August 30, 2022. Order Granting Intervention, ECF No. 16. Grupo
Acerero initiated a separate action challenging the Final Results and filed its
complaint on August 26, 2022. Compl., ECF No. 8, Case No. 22-00230. Grupo Acerero
challenged the same issues as Grupo Simec and also challenged the 33.5% dumping
rate that Commerce applied to it as unsupported by substantial evidence. Id. | 7.
The Coalition intervened as a Defendant-Intervenor in this case as well on September
6, 2022. Order Granting Intervention, ECF No. 16, Case No. 22-00230. Gerdau Corsa
also joined as Plaintiff-Intervenor on September 23, 2022. Order Granting
Intervention, ECF No. 23, Case No. 22-00230. After the in-person status conference
on October 26, 2022, and with the consent of all the parties, the Court consolidated
the two actions with Grupo Simec’s action designated as the lead case. Order, ECF
No. 27.

II. The Present Dispute
In antidumping cases, the Court reviews Commerce’s decision to determine

whether it is “unsupported by substantial evidence on the record[.]” 19 U.S.C. §
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1516a(b)(1)(B)@). The record is defined as 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[.]” 19 U.S.C. § 1516a(b)(2)(A)G). CIT Rule 73.2 explains that
“within 40 days after the date of service of the complaint [Commerce] must file the
official record of the civil action.” USCIT Rule 73.2(a). The rule mirrors the language
of the statutory definition and the language found in Commerce’s own regulations by
stating that the record includes “[a] copy of all information presented to or obtained
by the administering authority or the Commission during the course of the
administrative proceedings, including all governmental memoranda pertaining to the
case.” Id.; accord 19 U.S.C. § 1516a(b)(2)(A)Q@); 19 C.F-R. § 851.04.

On September 19, 2022, Commerce filed the indices of both the public and
confidential versions of the administrative record with the Court. Administrative
Record Index, ECF No. 18. On October 17, 2022, the Government filed what it termed
a Consent Motion for Leave to Correct the Administrative Record. Def.’s Consent
Mot., ECF No. 20. The Motion explained that the Final Deficiencies Memorandum,
which Commerce cited in its Final Results, “was inadvertently omitted from the
administrative record.” Jd. at 2. Commerce sought to correct this mistake because
“the Final Deficiencies Memorandum was actually considered by the agency decision

maker when making the challenged decision.” Jd. The Court entered an order
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granting the “Consent Motion” that same day. Order Granting Consent Motion, ECF
No. 21.

The next day, Grupo Simec contacted the Court and stated that it had not
consented to the Motion. Instead, it had requested a copy of the missing document
so that it could determine whether it should consent. The Court called for the parties
to submit their email correspondence regarding the issue of consent to the Motion.
See Appendix to Opinion, A review of the emails between the Department of
Commerce and Grupo Simec confirmed that Grupo Simec had never consented to
Commerce’s Motion. Meanwhile, Plaintiffs Grupo Acerero and Gerdau Corsa began
to have second thoughts about their earlier consent, withdrew that consent, and
reserved the right to object to any “correction of the record.” Id.

To bring order to this procedural chaos, the Court scheduled an in-person
status conference for October 26, 2022. See Order Scheduling Joint Status
Conference, ECF No. 25. Commerce explained that it omitted the Deficiencies
Memorandum because the analyst assigned to the case was on leave and the
replacement analyst who certified and assembled the record was unfamiliar with the
case. Joint Status Conf. Recording at 16:15—-16:28. The Court proposed placing the
Deficiencies Memorandum on the record while permitting the parties to dispute its
addition as part of their Motions for Judgment on the Agency Record. Counsel for

Grupo Simec was amenable to this proposition, but the counsels for Consolidated
Consol. Court No. 1:22-cv-00202 Page 7

Plaintiffs were opposed. The Court then granted a recess to allow the parties to confer
and reach a common position.

After the recess, Plaintiffs returned to the courtroom and stated that they
wished for the record issue to be resolved before filing their Motions for Judgment on
the Agency Record. Commerce had no objection to this and offered to give unredacted
copies of the Deficiencies Memorandum to the Plaintiffs’ Counsel to assist with the
briefing. Counsel for Grupo Simec accepted Commerce’s offer, but Counsel for Grupo
Acerero rejected it. Joint Status Conf. Recording at 50:20-51:00. The Court left each
party to make its own decision about whether to view the contested document before
the Court resolved the document’s disputed status. The parties were able to agree to
consolidate the two cases into one, with Case Number 22-202 becoming the lead case.
See Order, ECF No. 27. . The Court also set a briefing schedule for the contested
Motion to Correct the Administrative Record. Id.

On November 18, 2022, Commerce filed its Motion, arguing that the
Deficiencies Memorandum is part of the record because it was considered by
Commerce in making its decision and that adding it to the record for review would
not prejudice any party. Def.’s Mot. at 4-6, ECF No. 28. The Plaintiffs filed a joint
response in opposition to Commerce’s Motion, arguing that they would be prejudiced
by the addition because the omitted document contains new factual information that
they had neither seen nor had an opportunity on which to comment. Pls.’ Resp. at 6,

ECF No. 29. On December 14, 2022, Commerce filed its reply brief arguing that the
Consol. Court No. 1:22-ev-00202 Page 8

Deficiencies Memorandum was part of the Final Results of the administrative review
and that parties do not have an opportunity to comment on the Final Results. Def.’s
Reply at 2-4, ECF No. 33. Commerce asserts that the omitted document is
automatically part of the record and that it did not omit the document in bad faith.
Id. at 5-8. On December 21, 2022, the Coalition filed a reply brief in support of
Commerce’s Motion. It argued that a denial of the Motion would needlessly delay
resolution of the case because the appropriate remedy if Commerce were to lose on
the merits would be to remand to Commerce for it to include the document in the
record. Def.-Int.’s Reply at 4, ECF No. 34. The Motion is now ripe for consideration.
STANDARD OF REVIEW AND JURISDICTION

The Court has exclusive jurisdiction over Plaintiffs’ challenge to the Final
Results under 19 U.S.C. § 1516a(a)(2)(B)(G) and 28 U.S.C. § 1581(c), which grant the
Court authority to review actions contesting final affirmative determinations in an
antidumping order. Because the Court has jurisdiction over the underlying action, it
has jurisdiction over Defendant’s Motion to Correct the Record.

The record for judicial review consists of 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[.]” 19 U.S.C. § 151Ga(b)(2)(A)Q); accord 19 C.F.R.
§ 351.104; USCIT Rule 73.2. This Court has previously noted that the

“administrative record” is not necessarily “those documents that the agency has

Consol. Court No. 1:22-ev-00202 Page 9

compiled and submitted as ‘the’ administrative record” but rather “consists of all
documents and materials directly or indirectly considered by agency decision-makers
and includes evidence contrary to the agency’s position.” Hyundai Elec. & Energy
Sys. Co. v. United States, 477 F. Supp. 8d 1324, 1329 (CIT 2020) (quoting F. Ll: De
Cecco Di Filippo Fara San Martino S.P.A. v. United States, 980 F. Supp. 485, 488-89
(CIT 1997)). The Court therefore “consider[s] matters outside of the administrative
record submitted by the agency” when “there is a reasonable basis to believe the
administrative record is incomplete.” Jd. (emphasis in original) (quoting #. Lh De
Cecco, 980 F. Supp. at 487). Indeed, “a court may order completion or
supplementation of the record in light of clear evidence that the record was not
properly designated or the identification of reasonable grounds that documents
considered by the agency were not included in the record.” JSW Steel (USA) Ine. v.
United States, 466 F. Supp. 3d 1320, 1328-29 (CIT 2020); see Saha Thai Steel Pipe
Pub. Co., Lid. v. United States, 592 F. Supp. 3d 1299, 1308 (CIT 2022) (ordering the
record supplemented with information cited by respondent during investigation).
When the omitted information is “sufficiently intertwined with the relevant inquiry”
so that “the decision canfnot] be reviewed properly without” it, then the Court should
correct the record, as long as it would not unduly prejudice any party. See Floral

Trade Council v. United States, 709 F. Supp. 229, 230 (CIT 1989).
Consol. Court No. 1:22-cv-00202 Page 10

DISCUSSION

The Deficiencies Memorandum is properly part of the record because it was
produced during the investigation and was considered by the agency in making the
decision. The omission of the Deficiencies Memorandum would frustrate judicial
review: Commerce’s decision cannot properly be reviewed without its inclusion.
Because it is properly part of the record, the record should be corrected to include it
as long as its inclusion does not unduly prejudice any party and Commerce did not
act in bad faith in omitting it.! The Deficiencies Memorandum’s inclusion will not
unduly prejudice any party because the parties would not have received an
opportunity to comment on it and Plaintiffs point to no argument they forfeited as a
result of Commerce’s not providing them with it earlier. There is also no compelling
evidence Commerce acted in bad faith, and government agents are presumed to act
in good faith absent strong evidence to the contrary. Plaintiffs have not rebutted this
presumption; therefore, Commerce’s Motion to Correct the Record is GRANTED.

I. The Deficiencies Memorandum Is Part of the Record

The first and most important issue facing the Court is whether the Deficiencies

Memorandum is properly part of the record as defined by statute. Commerce argues

that the Deficiencies Memorandum is part of the Final Results because “it is

1 The Court does not address whether good cause supports the correction of the record because good
cause is foreign to the case law governing motions to correct or supplement the record. Cf. Def.’s Mot.
at 1, ECF No. 28; Pls.” Resp. at 138-14, ECF No. 29; Def.’s Reply at 6-7, ECF No, 38, The Court has
not found supporting case law where the good cause standard has been applied in this context. It would
be improper for the Court to insert an extraneous standard into consideration of this Motion.
Consol. Court No. 1:22-cv-00202 Page 11

referenced numerous times throughout the [DM,? is referred to in the Federal
Register notice, was dated ‘concurrently’ with the final results, ‘accompanies this
decision memorandum,’ and analyzes Grupo Simec’s proprietary information[.]”
Def’s Mot. at 4-5, ECF No. 28. The Plaintiffs counter that Commerce failed to comply
with the statutory deadline for submitting the record and cannot now add the omitted
document, which they allege contains new factual information. Pls.’ Resp. at 12-18,
ECF No. 29. Because the Deficiencies Memorandum is statutorily part of the record,
it may not be omitted.

The record “shall” include “all governmental memoranda pertaining to the
case[.]” 19 U.S.C. § 1516a(b)(2)(A)@). The record is not confined to “those documents
that the agency has compiled and submitted as ‘the’ administrative record,” but
rather “consists of all documents and materials directly or indirectly considered by
agency decision-makers|.]” Hyundai Elec., 477 F. Supp. 3d at 1829 (quoting F. Ll: De
Cecco, 980 F. Supp. at 488).

The Issues and Decisions Memorandum and the Final Results reference the
Deficiencies Memorandum extensively. See, e.g., IDM at 15, Barcode: 4247887-02 A-
201-844 REV; Final Results, 87 Fed. Reg. at 34,849 n.10. Indeed, the IDM cites the
Deficiencies Memorandum nine separate times. IDM at 15-16, 24-26, Barcode:
4247887-02 A-201-844 REY. The Deficiencies Memorandum is dated concurrently

- with the IDM, demonstrating that Commerce produced and considered the document

2 Issues and Decisions Memorandum, detailing Commerce’s final decision.
Consol. Court No. 1:22-cv-00202 Page 12

as it made its final decision. Final Deficiencies Memorandum at 1, Barcode: 43801434-
01 A-202-844 REV. As such, it is part ofthe record. See 19 U.S.C. § 1516a(b)(2)(A)Q@).
Further, as Commerce explained in its decision, “[d]ue to the proprietary nature of
certain information and issues, Commerce has separately addressed the deficiencies
and the arguments raised by parties in the Deficiencies Memorandum.” IDM at 15,
Barcode: 4247887-02 A-201-844 REV. In other words, Commerce created the
separate Deficiencies Memorandum to protect the parties’ business confidential
information. A separate document makes redaction easier.

Plaintiffs’ objections that Commerce is barred from adding the Deficiencies
Memorandum to the record and that Commerce is only allowed to correct ministerial
errors are incorrect. See Pls.’ Resp. at 11-18, ECF No. 29. Commerce, at the time it
makes a final determination, must “publish the facts and conclusion supporting that
determination[.}” 19 U.S.C. § 1677fG)(1). Plaintiffs argue that Commerce’s violation
of this statute bars it from correcting the record now. Pls.’ Resp. at 11, ECF No. 29.
However, the statute does not explain how to remedy the apparent conflict.
Commerce violated two statutes —- one providing what is in the record for review and
one providing what Commerce must publish when it makes its determination.
Compare 19 U.S.C. § 1516a(b)(2)(A)(@) (listing the required contents of the record for
review), with 19 U.S.C. § 1677fG) (obligating Commerce to publish the facts and
conclusions supporting its determinations). The statute offers no reason to conclude

that a document that is part of the record cannot be added to correct the record for
Consol. Court No. 1:22-cv-00202 Page 13

review when mistakenly omitted. As the Federal Circuit has explained, statutes
establishing procedural requirements that do not prescribe remedies or consequences
for their breach do not grant enforceable rights. See Andrews v. Principi, 351 F.3d
1184, 1137 (Fed. Cir. 2008) (citing Rodriguez v. West, 189 F.3d 1351, 1855 (Fed. Cir.
1999)); see also United States v. James Daniel Good Real Property, 510 U.S. 43, 63
(1993) (“We have held that if a statute does not specify a consequence for
noncompliance with statutory timing provisions, the federal courts will not in the
ordinary course impose their own coercive sanction.”).

Plaintiffs’ other contention that Commerce’s statutory authority to correct
ministerial errors does not extend to adding an entire memorandum to the record
misses the point. Pls.’ Resp. at 12, ECF No. 29. Commerce is not proceeding under
the ministerial error statute. See 19 U.S.C. § 1675(h). Rather, Commerce is
admitting it violated the statutes governing the record and the publication of the final
results. See Def.’s Mot. at 2-3, ECF No, 28. The appropriate remedy for this violation
is correction of the record, provided omission would frustrate judicial review, such
correction does not unduly prejudice any party, and the error was not made in bad
faith. The Court now turns to consider those questions.

Ii. Omission Would Frustrate Judicial Review

Commerce argues that the Deficiencies Memorandum was integral to its

decision to apply facts otherwise available with an adverse inference to Grupo Simec

and that the Court “cannot properly review th[e] determination” without the
Consol. Court No. 1:22-cev-00202 Page 14

document. Def.’s Reply at 10, ECF No. 38 (citing Saha Thai, 594 F. Supp. 3d at 1308).
Plaintiffs concede that “Commerce’s rationale without the Omitted Memorandum is
significantly different from its rationale with the Omitted Memorandum.” Pls.’ Resp.
at 16, ECF No. 29. The omission of the Deficiencies Memorandum would frustrate
judicial review because it is integral to understanding the challenged Final Results.

“A court considering a request to supplement an administrative record should
determine ‘whether supplementation of the record was necessary in order not “to
frustrate effective judicial review.”” Assn of Am. Sch. Paper Suppliers v. United
States, 683 F. Supp. 2d 1817, 1821 (CIT 2010) (quoting Axiom Resource Mgmt. v.
United States, 564 F.3d 1374, 1381 (Fed. Cir. 2009) (quoting Camp v. Pitts, 411 U.S.
188, 142-43 (19738))). An incomplete record will frustrate judicial review when the
absent materials are “sufficiently intertwined with the relevant inquiry” so that “the
decision can[not] be reviewed properly without” them. Floral Trade Council, 709 F.
Supp. at 230.

According to the IDM, the Deficiencies Memorandum contains a “robust
discussion” of the decision to apply adverse inferences drawn from facts otherwise
available to Grupo Simec. IDM at 24, Barcode: 4247887-02 A-201-844 REV. The
Deficiencies Memorandum is referenced nine separate times in the IDM as providing
a more detailed explanation or further support for Commerce’s conclusions. See, e.g.,
id, at 15 (“As the Deficiencies Memorandum discusses, the deficiencies contained in

the supplemental questionnaire responses and evaluated in the Preliminary Results

Consol. Court No. 1:22-cev-00202 Page 15

were all deficiencies that arose in the initial questionnaire responses and that Grupo
Simec failed to correct or explain in the supplemental questionnaire responses[.]”).
Plaintiffs admit that Commerce's rationale for its Final Results is significantly
clearer when considered alongside the Deficiencies Memorandum, See Pls.’ Resp. at
16, ECF No. 29. This likely explains why Plaintiffs make the extraordinary request
that the Court remand to Commerce with specific instructions that Commerce may
not place the Deficiencies Memorandum on the record. Jd. at 20. Without the
Deficiencies Memorandum, Commerce's decision may be incomplete because of the
lack of explanation found solely in the Final Results. Better evidence could not be
found that the Deficiencies Memorandum is inextricably intertwined with
Commerce’s decision in this case such that its omission would frustrate judicial
review.
Il. Plaintiffs Are Not Prejudiced

Plaintiffs argue that Commerce’s failure to provide them with the Deficiencies
Memorandum was prejudicial because they never had the opportunity to review and
comment on it during the administrative proceedings. Id. at 9. They necessarily also
contend that the information in the Deficiencies Memorandum is new factual
information; and, thus, they had a right to rebut those new facts. Jd. at 8. Commerce
counters that the Deficiencies Memorandum is part of the Final Results and would
never have been given to the Plaintiffs for comment or examination before its

issuance with the Final Results. Def.’s Reply at 3-4, ECF No. 38, Commerce also
Consol. Court No. 1:22-cv-00202 Page 16

argues that the Deficiencies Memorandum does not contain new factual information
but instead provides a detailed analysis of the facts already on the record. Id. at 2—
3.

The administrative law principle of harmless error requires a showing of
substantial prejudice resulting from an agency failure to follow statutory
requirements or agency regulations, See SolarWorld Americas, Inc. v. United States,
962 F.3d 13851, 1859 (Fed. Cir, 2020) (‘In the antidumping context, a party
challenging a purported error by Commerce must show that it was harmed asa result
of the error.”); Intercargo Ins. Co. v. United States, 83 F.3d 391, 394 (Fed. Cir. 1996)
(“It is well settled that principles of harmless error apply to the review of agency
proceedings.”); see also PAM S.p.A. v. United States, 463 F.3d 1345, 1848 (Fed. Cir.
2006) (requiring a showing of substantial prejudice when Commerce violated its own
regulation that required it to give notice to a foreign exporter).

Commerce admits that it failed to include the Deficiencies Memorandum in the
record as required by the statute, but that alone is insufficient to show substantial
prejudice. Def.’s Mot. at 1, ECF No. 28. Plaintiffs claim that they are prejudiced by
the lack of opportunity to comment on the Deficiencies Memorandum, Pls.’ Resp. at
9, ECF No. 29. But plaintiffs do not have an opportunity to comment on the final
results and accompanying explanation of an administrative review. Their final
opportunity for comment comes after the agency issues its Preliminary

Determination. See 19 C.F.R. § 351.309(c)(1)(Gi) (detailing that a party’s final
Consol. Court No. 1:22-ev-00202 Page 17

administrative case brief must be submitted “30 days after the date of publication of
the preliminary results of review”). At that time, parties are to file a brief with the
agency stating all grounds of objection to the preliminary results along with any
supporting legal argument. See 19 C.F.R. § 351.309 (“The case brief must present
all arguments that continue in the submitter’s view to be relevant to the Secretary’s
final determination or final results, including any arguments presented before the
date of publication of the preliminary determination or preliminary results.”). Any
non-ministerial objections to the Final Results have only one forum — federal court.
See 28 U.S.C. § 1581(c).

Plaintiffs further claim that they are prejudiced by not having access to the
Deficiencies Memorandum in preparing their Motions for Judgment on the Agency
Record. However, Plaintiffs will have ninety days after the resolution of this Motion
to develop their briefs. See Def.’s Reply at 9, ECF No. 33; see also Order, ECF No. 27.
And Plaintiffs have already been offered access to the Deficiencies Memorandum
while this Motion is pending so that they may review it and note any additional
arguments they wish to bring before the Court. Joint Status Conf. Recording at
50:20-51:00. Despite having been offered access to the Deficiencies Memorandum, it
is notable that none of the Plaintiffs have identified any specific amendments to their
present pleadings they need to make. See Pis.’ Resp. at 8-10, ECF No. 29 (failing to
identify any amendment of the pleadings necessitated by the Deficiencies

Memorandum).
Consol. Court No. 1:22-cv-00202 Page 18

Plaintiffs object that there is prejudice because the Deficiencies Memorandum
consists of new factual information, which is apparent because “discussion of Simec’s
responses in the Preliminary IDM [PDM] is only six pages; the [Deficiencies
Memorandum] is twenty-five pages long.” Id. at 6. The problem with this argument
is that it puts the cart before the horse. The Court can only address these issues if
the Deficiencies Memorandum is on the record and reviewable by the Court. The
question of whether the Deficiencies Memorandum contains new factual information
goes to the merits and not to whether it belongs on the record. If the Court finds
these claims meritorious after review under USCIT Rule 56.2, then it can remand the
case back to Commerce to give further explanation or to take new agency action. See
Dep't of Homeland Sec. v. Regents of the Univ. of Cal., 140S. Ct. 1891, 1907-08 (2020).

To show prejudice, a plaintiff “must show that it was harmed as a result of the
error.” SolarWorld, 962 F.3d at 1859. Yet Plaintiffs point to no arguments that they
have forfeited and for which they cannot seek remedy in their forthcoming Motions
for Judgment on the Agency Record. Pls.’ Resp. at 8-10, ECF No. 29. Plaintiffs have
failed to demonstrate they were harmed by Commerce’s failure to timely provide
them with the Deficiencies Memorandum. Commerce’s error was harmless.

IV. Commerce Did Not Act in Bad Faith

Plaintiffs finally argue that Commerce acted in bad faith because Commerce

only sought to correct the record four months after the Final Results and then only

after Grupo Simec brought the omitted memorandum to its attention. Id. at 16. They
Consol. Court No. 1:22-cv-00202 _ Page 19

also allege — without providing any evidence — that Commerce may have fabricated
the omitted memorandum after the publication of the Final Results. Jd. at 18.
Commerce replies that Plaintiffs’ allegations of bad faith or fraud are specious and
violate the presumption that government officials act in good faith in the exercise of
their duties. Def.’s Reply at 7, ECF No, 33.

The Federal Circuit has held that “[t]he presumption that government officials
act in good faith is enshrined in our jurisprudence.” Croman Corp. v. United States,
724 F.3d 1357, 1864 (Fed. Cir. 2013) (citing Am-Pro Protective Agency, Inc. v. United
States, 281 F.3d 1284, 1239 (Fed. Cir. 2002)). The Court must presume that
government officials “act conscientiously in the discharge of their duties,” and that
presumption may only be overcome by “clear and convincing evidence” of bad faith.
Id.

Bad faith requires evidence, not mere allegation. Commerce admits that it
erred in failing to provide the Deficiencies Memorandum when it published the Final
Results. See Def.’s Mot. at 2, ECF No. 28. Plaintiffs allege without evidence that
Commerce fabricated the document after the Final Results’ publication:

Although Commerce cited to a ‘Deficiencies Memo’ in the
Final IDM, there is no record of its creation prior to, or
concurrent with the decision-making process. Commerce’s
explanation to the Court is only its ‘understanding’ about
what happened, but Commerce does not provide a
definitive explanation of when the Memorandum was
created or when it was discussed or finalized in the

decision-making process. The only evidence Commerce
cites for the omission is that the Final IDM includes several
Consol. Court No. 1:22-cv-00202 Page 20

citations to a ‘Deficiencies Memo.’ Without details about
the circumstances of [the Deficiencies Memorandum], it is
objectively just as likely that someone at Commerce
suggested that it would be nice to have a [Deficiencies
Memorandum], but that this document was not actually
created until some point in time after the Final Results
were signed and issued. There 1s no information indicating
that any form of the [Deficiencies Memorandum] was
actualiy considered by Commerce during the decision-
making process.
Pls.’ Resp. at 15, ECF No. 29 Gnternal citations omitted).

Plaintiffs argue that there is no evidence Commerce created the Deficiencies
Memorandum but acknowledge that the document is cited repeatedly in the IDM. Id.
To explain this contradiction, Plaintiffs argue that it is not just plausible but
“objectively just as likely” that, rather than the document’s omission being
inadvertent error, (1) Commerce determined it would like to create a Deficiencies
Memorandum; (2) Commerce officials conspired to execute an elaborate fraud; (3) as
part of that fraud, Commerce inserted nine references to a yet-unwritten Deficiencies
Memorandum in support of specific arguments; and (4) sometime between then and
October 19, 2022, Commerce officials wrote and had senior officials approve a
Deficiencies Memorandum backdated to the same date as the Final Results. To refer

to these two situations as “equally likely” is absurd.? Given “the presumption that

government officials act in good faith,” fanciful allegations unsupported by evidence

3 See, e.g., Occam’s Razor: “The principle that in explaining anything no more assumptions should be
made than are necessary.” OXFORD ENGLISH DICTIONARY (Mar. 2022), https://bit.ly/8GUJthba.
Consol. Court No. 1:22-cv-00202 Page 21

are insufficient to provide the required “clear and convincing evidence” of bad faith.
Croman Corp., 724 F.3d at 1364. Commerce did not act in bad faith.
CONCLUSION
Plaintiffs have tried to argue that the full record of this proceeding should not
be considered with a barrage of arguments that miss the mark. The Deficiencies
Memorandum is an integral part of the Final Results, and it would frustrate judicial
review to omit the memorandum from the record. Plaintiffs are not prejudiced by its

inclusion, and Commerce did not act in bad faith. Commerce’s Motion to Correct the

i Mg.s fe

Stephen Alexander Vaden, Judge

Record is GRANTED.

Dated: Lass 27 2023

Krew York, New York