AD Petitioner Supports US Bid to Add 'Deficiencies Analysis' to Record at Trade Court
The Court of International Trade should let the U.S. add a key "Deficiencies Memorandum" to the record of an antidumping duty case since the document was "intertwined" with the AD proceeding's final results, petitioner Rebar Trade Action Coalition argued in a Dec. 21 reply brief. Arguing the memorandum is part of the record "as a matter of law" since it was "considered by agency decision-makers," the petitioner opposed the initiative from the Grupo Simec-led plaintiffs to oppose the addition of the memo to the record (Grupo Acerero v. United States, 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 a 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 because the agency frequently referenced the document in making its rate determinations. The plaintiffs opposed the 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 (see 2212050037).
The Rebar Trade Action Coalition said that since the deficiencies memo was created with the final issues and decision memo and was meant to accompany this final memo, the court should let the U.S. formally add it to the record. "Indeed, it is unclear to RTAC how any party, including Plaintiffs, would ultimately benefit from a denial of Defendant’s motion," the brief said. "Plaintiffs appear to believe that if the merits of this case are briefed without the Deficiencies Memorandum being a formal part of the administrative record, Commerce may 'lose' this case. But to the extent that Plaintiffs believe that this means that the Court will directly order Commerce to grant them all the relief that they sought below, i.e., a zero or de minimis margin for Simec, they entirely misunderstand the standard of review."
The court can remand the case only for reconsideration, whereby it could just "provide the reasoning already present in the Deficiencies Memorandum in its remand results," the defendant-intervenor said. The plaintiffs "imply" the deficiencies memo has new factual information and could not possibly be "critical." The defendant-intervenor said this is "specious," noting it's "perfectly possible for a document to refer only to existing factual information, while providing an analysis of that existing information not found elsewhere."