CIT Lets Commerce Add Previous AD Analysis Memo to Record of Anti-Circ Case
A 2012 analysis memorandum from a prior antidumping duty determination should be put on the record of a suit on an anti-circumvention proceeding, the Court of International Trade held on Dec. 5. Granting the government's motion to complete the administrative record, Judge Stephen Vaden dubbed the spat "pedantic" and said the record "should be supplemented."
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Commerce initially conducted an antidumping duty investigation on circular welded carbon-quality steel pipe from Vietnam, though the final 3.96% duty imposed on exporter and plaintiff SeAH Steel VINA Corp. was thwarted by a negative injury finding from the International Trade Commission. In response, U.S. companies prompted the opening of an anti-circumvention proceeding on the same goods.
In that proceeding, Commerce found that Vietnamese producers circumvented the AD orders on steel pipe from South Korea, India and China. During the subsequent legal challenge to this conclusion, the agency moved to complete the administrative record, noting Commerce and SeAH referenced the 2012 analysis memo from the original AD proceeding, but it wasn't added to the record. The U.S. said the memo should be treated no differently from an issues and decisions memorandum, which can be cited even if not formally on the record.
While a new Commerce regulation allows for this very practice, the regulation -- 19 C.F.R. § 351.104(a)(6) -- doesn't apply to the present case.
SeAH opposed the motion, arguing that there should be no difference in a party's ability to cite the analysis memo because it's a "prior determination" of Commerce. Vaden said "this pedantic dispute is irrelevant here because the document is properly part of the administrative record and may therefore be considered."
The judge said the record is made of a copy of all information presented to or obtained by the administering authority during the course of the proceeding, including "all governmental memoranda pertaining to the case." In this case, the 2012 memo should be part of the record, making the current record incomplete due to its present exclusion, the court said.
Given that it's "undisputed Commerce directly considered the memorandum," it's part of the record and the court can't properly review the determination without it, the decision said. Vaden added that the move doesn't prejudice SeAH because it hasn't shown or claimed that "it will suffer any harm from the proposed inclusion" but instead only that parties should be able to cite it as they would an issues and decision memo.
Even if the exporter is right, "it is an irrelevant distinction here," Vaden held. However the memo is classified, the agency considered it during the proceeding and thus made it part of the record "the moment it considered the Memorandum in its decision-making process."
(SeAH Steel VINA Corp. v. U.S., Slip Op. 24-134, CIT #s 23-00256, 23-00257, 23-00258, dated 12/5/24; Judge: Stephen Vaden; Attorneys: Jeffrey Winton of Winton & Chapman for plaintiff SeAH Steel VINA Corporation; Stephen Tosini for defendant U.S. government; Jeffrey Gerrish of Schagrin Associates for defendant-intervenors led by Bull Moose Tube Co.; and Robert DeFrancesco of Wiley for defendant-intervenor Nucor Tubular Products Inc.).