AD Plaintiffs Oppose Addition of 'Deficiencies Analysis' to Record at CIT
Plaintiffs in an antidumping duty review challenge at the Court of International Trade, led by Grupo Simec, filed their opposition on Dec. 2 to the Commerce Department's move to add a memorandum to the administrative record. The plaintiffs said the move to add the memo -- a questionnaire deficiencies analysis for AD respondent Grupo Simec -- more than four months after the record closed was illegal because the document had never been "filed, published" or otherwise sent to the parties (Grupo Simec v. U.S., CIT Consol. # 22-00202).
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The case concerns the administrative review of the antidumping duty order on steel concrete reinforcing bar from Mexico in which Simec and Deacero served as the mandatory respondents. During the review, Simec timely submitted its questionnaire responses, but it filed multiple requests for deadline extensions; Commerce granted only some. The plaintiffs said Simec's supplemental response was submitted "under extreme time-constraints." The agency then rejected Simec's request to file additional relevant factual information in the review. The result was a 0% margin for Deacero and an 66.7% adverse facts available rate for Simec.
Commerce put together a deficiencies' analysis for Simec on which it based the AFA rate, though the agency did not add this memo to the record. After the plaintiffs, including Simec, took to the trade court, Commerce moved to add the document to the record since the agency frequently referenced the document in making its rate determinations. The plaintiffs oppose this motion, arguing, in part, that Commerce cannot supplement the record with the deficiencies analysis because the agency never gave the parties a chance to comment about the document.
"In particular, the Court should reject ... Commerce’s Motion because: (1) the Omitted Memorandum impermissibly offers new factual findings upon which parties never received an opportunity to comment before the agency; (2) Commerce disregarded its statutory obligation to publish the Omitted Memorandum with the Final Results of the review; and (3) no good cause exists to add the Omitted Memorandum to the record in these proceedings. Accordingly, the Defendant’s request should be denied," the brief said.
The plaintiffs argued that, despite Commerce's claims to the contrary, the omitted memo has new factual information including "specific detailed analysis and Commerce's characterizations of key facts," not just a brief summary of the issues previously provided. Further, in arguing that no good cause exists to add the document, the plaintiffs claimed there's no good cause given that Commerce has exclusive control of the information, the "significant delay before attempting to correct the omission, and its involuntary acknowledgment of the omission."