Federal - Executive Branch
News releases, reports, statements and associated documents from the U.S. Executive Branch, covering all aspects of the Obama administration including cabinet departments, federal agencies, regulatory and independent agencies.
Featured Stories
Ore. U.S. Attorney: Portland Man Pleads Guilty for Cyber Intrusion of Former Employer
PORTLAND, Oregon, Oct. 18 -- The U.S. Attorney for the District of Oregon, Billy J. Williams, issued the following news release:
Kristopher Ives, 33, of Portland, pleaded guilty today to fraud in connection with computers for illegally accessing the computer network and data of his former employer, Gearbox Studios, after being terminated.
According to court documents, in 2008, Ives began working as a computer programmer for Gearbox Studios, a Portland-based digital marketing agency. Ives eventually became Gearbox Studio's lead programmer for server architecture and support, a position of trust
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PORTLAND, Oregon, Oct. 18 -- The U.S. Attorney for the District of Oregon, Billy J. Williams, issued the following news release:
Kristopher Ives, 33, of Portland, pleaded guilty today to fraud in connection with computers for illegally accessing the computer network and data of his former employer, Gearbox Studios, after being terminated.
According to court documents, in 2008, Ives began working as a computer programmer for Gearbox Studios, a Portland-based digital marketing agency. Ives eventually became Gearbox Studio's lead programmer for server architecture and support, a position of trustwith access to the computer networks and data of both the company and the company's clients.
Between February and May 2015, after being terminated from his position, Ives illegally accessed Gearbox's computers to steal and tamper with data. He used this data to attack Gearbox's servers and various websites belonging to Gearbox customers. Ives deleted nearly 20,000 products from customer websites and changed prices for various items. Ives also stole names and credit card numbers from these Gearbox customer websites and threatened to release the information unless Gearbox made payment to a bitcoin address.
Ives faces a maximum sentence of 10 years in prison, a $250,000 fine and three years of supervised release. He will be sentenced on January 22, 2020 before U.S. District Court Judge Michael H. Simon.
As part of the plea agreement, Ives has agreed to pay restitution to his victims as ordered by the court.
This case was investigated by the FBI's Oregon Cybercrime Task Force and is being prosecuted by Quinn P. Harrington, Assistant U.S. Attorney for the District of Oregon.
Any public or private entity suspecting a cyber intrusion or attack should contact the FBI through the Internet Crime Complaint Center at http://www.ic3.gov or by calling your nearest FBI office.
NIH Funds New All of Us Research Program Genome Center to Test Advanced Sequencing Tools
WASHINGTON, Oct. 18 -- The U.S. Department of Health and Human Services' National Institutes of Health issued the following news release:
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- HudsonAlpha awarded $7 million to expand national health dataset with uncharted genetic variants.
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The All of Us Research Program (https://allofus.nih.gov/) has selected the HudsonAlpha Institute for Biotechnology, Huntsville, Alabama, to evaluate the use of leading-edge DNA sequencing technologies that could someday improve diagnosis and treatment of many diseases, both common and rare. The National Center for Advancing Translational Sciences
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WASHINGTON, Oct. 18 -- The U.S. Department of Health and Human Services' National Institutes of Health issued the following news release:
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- HudsonAlpha awarded $7 million to expand national health dataset with uncharted genetic variants.
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The All of Us Research Program (https://allofus.nih.gov/) has selected the HudsonAlpha Institute for Biotechnology, Huntsville, Alabama, to evaluate the use of leading-edge DNA sequencing technologies that could someday improve diagnosis and treatment of many diseases, both common and rare. The National Center for Advancing Translational Sciences(NCATS) is funding the project with $7 million over one year. All of Us and NCATS are parts of the National Institutes of Health.
"All of Us will provide one of the world's most robust platforms for precision medicine research, with a broad range of data to drive new discoveries," said Eric Dishman, All of Us director. "Through this partnership with NCATS, we'll be able to offer approved researchers an even greater depth of genetic information than originally planned, making the resource even more valuable for them and the diverse communities we seek to help."
With this award, HudsonAlpha will use long-read whole genome sequencing technologies to generate genetic data on about 6,000 samples from participants of different backgrounds. Long-read sequencing analyzes DNA in larger segments than standard (short-read) sequencing technologies, exposing genetic variations that may otherwise go undetected. These variations include different types of alterations to the genetic structure, such as duplication, deletion or rearrangement of the building blocks that uniquely make up one's genome and set it apart from others. Everyone has thousands of these genetic variations, most with little known effect. However, researchers are learning more about how some genetic variants underlie certain health conditions or, conversely, increase disease resistance. Understanding the genetic underpinnings of health and disease will help researchers identify more targeted interventions in the future.
This project will allow researchers to better determine the value of long-read sequencing and its strengths and limitations in exploring more elusive parts of the genome. Combined with the 1 million whole genome sequences the program already plans to deliver over the next several years, this additional infusion of genetic information will provide the research community with the largest collection of genomic structural variation data and clinical data ever produced.
"Because long-read sequencing can reveal genetic changes associated with rare diseases, this project is an opportunity to assess and potentially refine the technology for advancing research across the many diseases for which there is no treatment," said Christopher P. Austin, M.D., NCATS director. "This project illustrates the power of data and technology to accelerate the translation of knowledge into improved health."
The HudsonAlpha team, led by Shawn Levy, Ph.D., brings significant experience in large-scale sequencing projects and in genetic studies on inherited disorders as well as complex conditions, including autism, diabetes, cancer, schizophrenia, degenerative neurological disease and amyotrophic lateral sclerosis (ALS).
"We look forward to collaborating with the other All of Us genome centers and the rest of the consortium on this exciting effort," said Dr. Levy. "Contributing long-read sequencing data to reveal additional structural variants will enable the scientific community to study human diversity on a tremendous scale. Appreciating the impacts of all types of genetic variation will further unravel the genetic, environmental and behavioral influences of health."
About the All of Us Research Program: The mission of the All of Us Research Program is to accelerate health research and medical breakthroughs, enabling individualized prevention, treatment, and care for all of us. The program will partner with one million or more people across the United States to build the most diverse biomedical data resource of its kind, to help researchers gain better insights into the biological, environmental, and behavioral factors that influence health. For more information, visit http://www.JoinAllofUs.org and http://www.allofus.nih.gov.
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About the National Center for Advancing Translational Sciences (NCATS):
NCATS conducts and supports research on the science and operation of translation -- the process by which interventions to improve health are developed and implemented -- to allow more treatments to get to more patients more quickly. For more information about how NCATS is improving health through smarter science, visit https://ncats.nih.gov.
About the National Institutes of Health (NIH):
NIH, the nation's medical research agency, includes 27 Institutes and Centers and is a component of the U.S. Department of Health and Human Services. NIH is the primary federal agency conducting and supporting basic, clinical, and translational medical research, and is investigating the causes, treatments, and cures for both common and rare diseases. For more information about NIH and its programs, visit http://www.nih.gov.
NIH...Turning Discovery Into Health
Joint Base Lewis-McChord to Celebrate 7th Airlift Squadron's 80th Anniversary
JOINT BASE LEWIS-MCCHORD, Washington, Oct. 18 -- The U.S. Air Force (62nd Airlift Wing) issued the following news:
Joint Base Lewis-McChord will honor the 80th anniversary of the 7th Airlift Squadron, Oct. 18, 2019.
"For 80 years now since activation on Oct. 14, 1939, the 7th Airlift Squadron has pursued American interests above the seven seas and across the seven continents in both war and peace," said Lt. Col. Jamil Musa, 7th Airlift Squadron commander. "While the machines have changed, the spirit of adventure, personal sacrifice, and sense of service of the people has remained constant. The
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JOINT BASE LEWIS-MCCHORD, Washington, Oct. 18 -- The U.S. Air Force (62nd Airlift Wing) issued the following news:
Joint Base Lewis-McChord will honor the 80th anniversary of the 7th Airlift Squadron, Oct. 18, 2019.
"For 80 years now since activation on Oct. 14, 1939, the 7th Airlift Squadron has pursued American interests above the seven seas and across the seven continents in both war and peace," said Lt. Col. Jamil Musa, 7th Airlift Squadron commander. "While the machines have changed, the spirit of adventure, personal sacrifice, and sense of service of the people has remained constant. Themen and women of the 7th Airlift Squadron constitute our nation's SWORD."
The 7th Airlift Squadron is one of the oldest active airlift squadrons in the U.S. Air Force. Originally constituted as the 7th Troop Squadron Oct. 1, 1933, it officially activated at the Sacramento Air Depot, California, Oct. 14, 1939, and flew a mix of C-33s, C-39s, C-53s, and B-10s. After the United States entered World War II, the 7th re-designated as the 7th Troop Carrier Squadron and began training on C-47s at Kellogg Field in Michigan. In 1942, it was among the first units to deploy into the war zone.
During the Korean conflict, the 7th flew long, over water missions to Japan while temporarily assigned to McChord Air Force Base. It later received two Outstanding Unit Awards for support to the French in Vietnam and efforts during the Cuban Blockade.
In the 1980s and 1990s, the 7th provided humanitarian support after Hurricanes Hugo, Andrew and Iniki; flood relief to Bangladesh and evacuation support after the eruption of Mount Pinatubo in the Philippines. In addition, the 7th provided critical airlift support during Operation Restore Hope in Somalia, as well as delivering thousands of tons of relief supplies to the former Soviet Union.
In 1993, the 7th Airlift Squadron returned to McChord and the 62nd Airlift Wing from Travis Air Force Base, California.
Since 2001, the 7th supported missions in Afghanistan during Operation Enduring Freedom (2001 - 2014) and Iraq during Operation Iraqi Freedom/New Dawn (2003 - 2010). After 2014, the 7th provided combat airlift missions delivering troops, equipment and supplies in the fight against the Taliban and ISIL in Operations Freedom's Sentinel (Afghanistan) and Inherent Resolve (Iraq).
Fact Sheet: Recovery at a Glance - Taylor County
WASHINGTON, Oct. 18 -- The U.S. Department of Homeland Security's Federal Emergency Management Agency issued the following fact sheet:
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- As of Oct. 16, unless otherwise noted
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Since the federal disaster declaration for Hurricane Michael, Taylor County residents, local governments and private non-profits have received about $981,000 in total federal funds:
* 44 homeowners and renters have been approved for nearly $95,000 in federal grants through FEMA's Individuals and Households Program.
* As of Sept. 17, 23 flood insurance claims have been filed. An estimated $717,000 in claims
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WASHINGTON, Oct. 18 -- The U.S. Department of Homeland Security's Federal Emergency Management Agency issued the following fact sheet:
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- As of Oct. 16, unless otherwise noted
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Since the federal disaster declaration for Hurricane Michael, Taylor County residents, local governments and private non-profits have received about $981,000 in total federal funds:
* 44 homeowners and renters have been approved for nearly $95,000 in federal grants through FEMA's Individuals and Households Program.
* As of Sept. 17, 23 flood insurance claims have been filed. An estimated $717,000 in claimshave been paid.
* As of Oct. 1, more than $91,000 in U.S. Small Business Administration low-interest disaster loans have been approved for two homeowners and renters.
* FEMA has provided nearly $78,000 to the state to help local governments and private non-profits in Taylor County with Hurricane Michael-related expenses.
Housing Assistance:
* 20 homeowners have been approved for basic housing repairs.
* 22 homeowners and renters have been approved for rental assistance.
* Four survivors have not provided FEMA with the necessary information from their insurance settlements to complete their disaster assistance registration.
Public Assistance:
* As part of the $78,000 provided to date to help local governments and private non-profits:
* More than $52,000 was reimbursement for emergency protective measures.
Court of International Trade Issues Opinion in CSC Sugar Case
NEW YORK, Oct. 18 -- The U.S. Court of International Trade issued the following slip opinion (Slip Op. 19-132):
CSC SUGAR LLC, Plaintiff,
v.
UNITED STATES, Defendant.
Before: Leo M. Gordon, Judge
Court No. 17-00215
OPINION
[Granting Plaintiff's Motion for Judgment on the Agency Record]
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 were Joseph H.
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NEW YORK, Oct. 18 -- The U.S. Court of International Trade issued the following slip opinion (Slip Op. 19-132):
CSC SUGAR LLC, Plaintiff,
v.
UNITED STATES, Defendant.
Before: Leo M. Gordon, Judge
Court No. 17-00215
OPINION
[Granting Plaintiff's Motion for Judgment on the Agency Record]
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 were Joseph H.Hunt, Assistant Attorney General, Jeanne E. Davidson, Director, and Reginald T. Blades, Jr., Assistant Director. Of counsel on the brief was Brandon Custard, Attorney, U.S. Department of Commerce, Office of the Chief Counsel for Trade Enforcement and Compliance of Washington, DC.
Robert C. Cassidy, Jr., Charles S. Levy, James R. Cannon, Jr., and Jonathan M. Zielinski, 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.
Irwin P. Altschuler, Rosa S. Jeong, and Daniel E. Parga, Greenberg Traurig, LLP, of Washington, DC for Defendant-Intervenor Camara Nacional de Las Industrias Azucarera y Alcoholera.
Gregory J. Spak, Kristina Zissis, and Ron Kendler, White and Case LLP, of Washington, DC for Defendant-Intervenor Imperial Sugar Company.
Gordon, Judge: This action involves a challenge to the U.S. Department of Commerce's ("Commerce") determination to amend the suspension agreement regarding the antidumping duty ("AD") 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 AD Suspension Agreement) ("AD Amendment")./2
Before the court is the motion of Plaintiff CSC Sugar LLC ("Plaintiff" or "CSC Sugar") for judgment on the agency record under USCIT Rule 56.2. See Pl.'s Mot. for J. on the Agency R., ECF No. 88/3 ("Pl.'s Mot."); see also Def.'s Resp. to Pl.'s Mot. for J. on the Agency R., ECF No. 100 ("Def.'s Resp."); Def.-Intervenor Camara Nacional de Las Industrias Azucarera y Alcoholera Resp. Opp. Pl.'s Mot. for J. on the Agency R., ECF No. 93 ("Camara 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. for J. on the Agency R., ECF No. 95 ("ASC Resp."); Pl.'s Reply in Supp. Of Mot. for J. on the Agency R., ECF No. 104 ("Pl.'s Reply"). The court has jurisdiction over this matter pursuant to Sec. 516A(a)(2)(B)(iv) of the Tariff Act of 1930, as amended, 19 U.S.C. Sec. 1516a(a)(2)(B)(iv),/4 and 28 U.S.C. Sec. 1581(1)(c) (2012). For the reasons set forth below, the court grants Plaintiff's motion.
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. After Commerce issued a preliminary determination that sugar from Mexico was being sold, or was likely to be sold, into the United States at less than fair value, Commerce and the Government of Mexico negotiated and 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 Agreement").
In 2017, Commerce and the Government of Mexico negotiated amendments to the suspension agreement. See AD Amendment. Among other changes, this amendment altered the definition of "refined sugar" in the AD Agreement. See id. (amending definition of "refined sugar" to consist of sugar with a polarity 99.2 degrees and above, instead of 99.5 degrees polarity and above). In response, CSC Sugar commenced this action. See Compl., ECF No. 11. After Commerce filed the administrative record pursuant to 19 U.S.C. Sec. 1516a(b)(2)(A)(i) and USCIT Rule 73.2(a), CSC Sugar contended that Commerce did not meet its obligation to file a complete administrative record. See Pl.'s Mot. to Complete Admin. R., ECF Nos. 32 & 33. Specifically, CSC Sugar argued 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 representatives of Mexico) as required by 19 U.S.C. Sec. 1677f(a)(3). Id. The court agreed and ordered Commerce to supplement the administrative record with any ex parte meetings about the AD Amendment. See CSC Sugar LLC v. United States, 42 CIT ___, ___, 317 F. Supp. 3d 1334, 1345 (2018) ("CSC Sugar I"). Commerce then supplemented the administrative record with two logs. The first, a "Consultations Log," documented the ex parte meetings that were held or may have been held in relation to the AD Agreement Amendment. See Consultations Log, ECF No. 62-1. The second was an "Email Log" that included email correspondence, with attached documents, between interested parties and Commerce. See Email Log, ECF No. 62-2. CSC Sugar subsequently filed a motion for judgment on the agency record under USCIT Rule 56.2 arguing that Commerce's failure during the suspension amendment negotiations to maintain contemporaneous ex parte meeting memoranda (pursuant to Sec. 1677f(a)(3)) could not be adequately remedied by the Government's belated and incomplete supplementation of the record. See Pl.'s Mot. CSC Sugar maintains that the only adequate remedy to address Commerce's willful disregard of its statutory obligations is to vacate the AD Amendment. Id. at 23-29.
II. Standard of Review
The court sustains Commerce's "determinations, findings, or conclusions" unless they are "unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C Sec. 1516a(b)(1)(B)(i). More specifically, when reviewing agency determinations, findings or conclusions for substantial evidence, the court assesses whether the agency action is reasonable given the record as a whole. Nippon Steel Corp v. United States, 458 F.3d 1345, 1350-51 (Fed. Cir. 2006). Substantial evidence has been described as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." DuPont Teijin Films USA v. United States, 407 F.3d 1211, 1215 (Fed. Cir. 2005) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Substantial evidence has also been described as "something less than the weight of evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence." Consolo v. Fed. Mar. Comm'n, 383 U.S. 607, 620 (1966). Fundamentally, though, "substantial evidence" is best understood as a word formula connoting a reasonableness review. 3 Charles H. Koch, Jr., Administrative Law and Practice Sec. 9.24[1] (3d ed. 2019). Therefore, when addressing a substantial evidence issue raised by a party, the court analyzes whether the challenged agency action "was reasonable given the circumstances presented by the whole record." 8A West's Fed. Forms, National Courts Sec. 3.6 (5th ed. 2019).
The court does not set aside agency action for procedural errors unless the error is prejudicial to the party seeking to have the action set aside. See Sea-Land Serv. Inc., v. United States, 14 CIT 253, 257, 735 F. Supp 1059, 1063 (1990)), aff'd and adopted, 923 F.2d 838 (Fed. Cir. 1991). However, in circumstances where the administrative record "looks complete on its face and appears to support the decision of the agency but there is a subsequent showing of impropriety in the process, that impropriety creates an appearance of irregularity which the agency must then show to be harmless." See Portland Audubon Soc. v. Endangered Species Comm., 984 F.2d 1534, 1548 (9th Cir. 1993) (addressing application of the Administrative Procedure Act to executive agency's failure to document prohibited ex parte communications).
III. Discussion
In CSC Sugar I, the court held that 19 U.S.C. Sec. 1516a(b)(2)(A)(i) unambiguously required that "all information presented to or obtained by" Commerce in the course of reaching its AD Amendment determination be provided to the court in order to review CSC Sugar's challenge to that determination. See 42 CIT at ___, 317 F. Supp. 3d at 1340. The court therefore ordered the Government to comply with Sec.Sec. 1516a(b)(2) and 1677f(a)(3) and to supplement the record with the memoranda summarizing "any ex parte meetings about the AD Amendment." Id. 42 CIT at ___, 317 F. Supp. 3d at 1345.
Commerce then supplemented the administrative record with the Consultations and Email Logs that attempted to provide detail as to Commerce's ex parte communications with interested parties during the AD Amendment negotiations. The question the court must now address is whether CSC Sugar is entitled to have the AD Amendment vacated given that Commerce did not and cannot provide
contemporaneous memoranda of its ex parte meetings during the negotiation of the AD Amendment as required under Sec. 1677f(a)(3). Plaintiff contends that "[b]ecause the relevant statutes and regulation are 'intended to provide important procedural benefits,' the court must vacate the [AD Amendment] unless Commerce shows its error was harmless." See Pl.'s Mot. at 23-25 (relying on Guangdong Chemicals Imp. & Exp. Corp. v. United States, 30 CIT 85, 414 F. Supp. 2d 1300 (2006), and Portland Audubon Soc. v. Endangered Species Comm., 984 F.2d 1534 (9th Cir. 1993)). CSC Sugar further argues that Commerce's violations of Sec.Sec. 1516a(b)(2)(A)(i) and 1677f(a)(3), as well as 19 C.F.R. Sec. 351.104, constituted prejudicial error as Commerce's recordkeeping failures "foreclosed any opportunity [for CSC Sugar] to inspect or comment on those memoranda." Id. at 27.
The Government admits that the record in this matter remains incomplete because "preparing ex parte memoranda documenting meetings a year or two after the fact would have been extremely difficult, if not impossible." See Def.'s Resp. at 8. Nevertheless, the Government maintains that the record as amended presents a "fulsome review of Commerce's negotiation of the AD Amendment." See id. The Government therefore contends that "the amended record allows for effective judicial review of the merits of Commerce's determination and complies with 19 U.S.C. Sec. 1677f(a)(3)." Id. at 10. The Government further argues that Plaintiff misstates the proper burden of proof. The Government maintains that even if the record as amended is not complete, CSC Sugar is not entitled to any further relief absent a demonstration of "substantial prejudice" resulting from Commerce's failure to adhere to the recordkeeping requirements of Sec. 1677f(a)(3). See Def.'s Resp. at 10-28 (citing Suntec Indus. Co. v. United States, 857 F.3d 1363 (Fed. Cir. 2017) ("Suntec III") and PAM, S.p.A. v. United States, 463 F.3d 1345 (Fed. Cir. 2006)). 19 U.S.C. Sec. 1677f does not specify a particular remedy for the violation of its provisions. The parties agree that Commerce's failure to document its ex parte meetings during the negotiation of the AD Amendment should be viewed as a procedural failure on the part of the agency. See Pl.'s Mot. at 23 ("Separately and together, Sec. 1516a(b)(2)(A)(i), Sec. 1677f(a)(3), and 19 C.F.R. Sec. 351.104 are intended to provide important procedural benefits." (internal citation and quotation marks omitted)); Def.'s Resp. at 3-7 (emphasizing that Plaintiff's Rule 56.2 motion hinges on allegations of "procedural error"). However, the parties disagree as to the proper legal framework that should govern the court's analysis of what remedy, if any, Plaintiff may be entitled to obtain for Commerce's recordkeeping failure. It is for the court to determine the consequence, if any, of an agency's procedural errors by applying principles of "harmless error" or the "rule of prejudicial error." See 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 5 U.S.C. Sec. 706 (judicial review of agency action is conducted with "due account ... of the rule of prejudicial error"). Whether an error is prejudicial or harmless depends on the facts of a given case. See Shinseki v. Sanders, 556 U.S. 396, 407-08 (2009) (finding that courts are to determine whether an agency error is harmless by "case-specific application of judgment, based upon examination of the record").
Defendant maintains that CSC Sugar has the burden of demonstrating that it suffered "substantial prejudice" from Commerce's recordkeeping errors pursuant to guidance from the U.S. Court of Appeals for the Federal Circuit in Suntec III and PAM, S.p.A. v. United States. However, as Plaintiff rightfully points out, those decisions both concerned "the requirement to show substantial prejudice of a notice defect." See Suntec III, 857 F.3d at 1369 (emphasis added); see also Pl.'s Reply at 8-10, 19 (distinguishing the facts of the present action from the decisions on which Defendant relies that involve "technical failures" or defects of "mere 'notice or service requirements'"). This matter involves Commerce's failure to maintain a complete record as required by the statute and its own regulations, and the court agrees with Plaintiff that such issues involved important procedural benefits that go beyond mere technical notice defects. Instead, this matter is similar to circumstances addressed by the U.S. Court of Appeals for the Ninth Circuit in Portland Audubon Soc. v. Endangered Species Comm., 984 F.2d 1534 (9th Cir. 1993). In Audubon, environmental group plaintiffs challenged an administrative decision of the Endangered Species Committee and argued that the committee had engaged in undocumented ex parte meetings and communications with the White House in reaching the contested determination. See Audubon, 984 F.2d at 1536-37. There, the Ninth Circuit held that the record must be supplemented and that plaintiffs were entitled to a remand of the contested decision to the committee for a hearing before an administrative law judge "to determine the nature, content, extent, source, and effect of any ex parte communications that may have transpired." Id. at 1549. As the court explained, If the record is not complete, then the requirement that the agency decision be supported by 'the record' becomes almost meaningless. Indeed, where the so-called 'record' looks complete on its face and appears to support the decision of the agency but there is a subsequent showing of impropriety in the process, that impropriety creates an appearance of irregularity which the agency must then show to be harmless. Id. at 1548 (internal citations omitted).
Although Defendant contends that CSC Sugar was not prejudiced because it "actively participated in the administrative proceeding," Defendant fails to address the fact that Commerce's complete failure to follow Sec. 1677f effectively prevented CSC Sugar from commenting on the ex parte materials and discussions Commerce engaged in during the AD Amendment negotiations. See Def.'s Resp. at 10-16. Similarly, Defendant maintains that CSC Sugar did not suffer substantial prejudice because CSC Sugar cannot demonstrate that Commerce's decision would have been different but for Commerce's failure to maintain and provide contemporaneous ex parte memoranda. See id. at 26-28. Defendant's argument requires the court to presume, without basis, that any response CSC Sugar may have had to other interested parties' ex parte communications with Commerce during the AD Amendment negotiations would have been meritless and futile. By violating Sec. 1677f(a)(3) when it failed to contemporaneously memorialize ex parte meetings, and by violating Sec. 1516a(b)(2)(A)(i) and 19 C.F.R. Sec. 351.104 when it failed to maintain and provide a complete administrative record, Commerce foreclosed any opportunity for Plaintiff to inspect or comment on those memoranda. The court has previously explained why Commerce's failure to timely maintain ex parte memoranda during the administrative proceeding violates the statutory protections and purpose of Sec. 1677f(a)(3) and prejudices interested parties:
Whether or not information is in the record via the petition or otherwise, Commerce is not entitled to choose which covered ex parte meetings it will memorialize, based on its own identification of redundancies. Parties are entitled to know when and how information was conveyed; they should not have to rely on subtle judgments by Commerce officials or employees about whether factual information is important, is already in the record in some other form, or is even useful to the agency or to the parties. All Commerce was required to do was to have timely memoranda drafted and filed so that parties could review them at some useful point during the proceeding. Placing a few very summary memoranda on the record after all decision-making is complete is useless and disrespectful of the administrative process, as well as violative of the statute. By requiring that the memoranda be available for 'inspection,' the statute requires that the parties to the proceeding be able to inspect the memoranda so that they may comment on the factual data contained therein or ask for more detailed memoranda, if those placed on the record are not informative. See Wieland-Werke AG v. United States, 22 CIT 129, 134-35, 4 F. Supp. 2d 1207, 1212-13 (1998) (parties must be allowed to comment on information obtained by Commerce). See also 19 U.S.C. Sec. 1677m(g) (requiring "opportunity to comment on the information obtained by the administrative authority"). Commerce's disregard as to timing does not serve procedural due process or the goal of transparency, as required by the statute. Nippon Steel Corp. v. United States, 24 CIT 1158, 118 F. Supp. 2d 1366, 1373-74 (2000)./5 For these reasons, the court concludes (1) that Commerce's failure to follow the recordkeeping requirements of Sec. 1677f(a)(3) cannot be described as "harmless" and (2) that the agency's recordkeeping failure substantially prejudiced Plaintiff. Therefore, the AD Amendment must be vacated.
IV. Conclusion
Based on the foregoing, the court grants Plaintiff's USCIT Rule 56.2 motion for judgment on the agency record. Judgment will be entered accordingly.
Judge Leo M. Gordon
Dated: October 18, 2019
New York, New York
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1/ "PD ___" refers to a document contained in the public administrative record, which is found in ECF Nos. 29-1, 62-72 unless otherwise noted. "CD ___" refers to a document contained in the confidential administrative record, which is found in ECF Nos. 29-2, 73, 74, 75, and 77 unless otherwise noted.
2/ CSC Sugar also filed a parallel action, Court No. 17-00214, challenging Commerce's amendment to the Countervailing Duty ("CVD") Suspension Agreement, which is addressed in this Court's decision, Slip Op. 19-131, also issued this date.
3/ All citations to parties' briefs and the agency record are to their confidential versions unless otherwise noted.
4/ Further citations to the Tariff Act of 1930, as amended, are to relevant provisions of Title 19 of the U.S. Code, 2012 edition.
5/ The court in Nippon Steel Corp. ultimately concluded that Commerce's failure to memorialize the submission of information ex parte was "harmless" in the specific circumstances presented in that matter because the aggrieved respondent had prevailed on the relevant final determination. See Nippon Steel Corp., 24 CIT 1158, 118 F. Supp. 2d at 1374 & n.7 ("The court, however, will not vacate the final determination and subsequent order based on Commerce's error, as requested by NSC. It is likely that in this case the error that is obvious was harmless.... The final critical circumstances decision was in NSC's favor."). In this matter, the court cannot similarly conclude that Commerce's failure to timely maintain ex parte memoranda on the record pursuant to Sec. 1677f(a)(3) was harmless. Cf. Mid Continent Nail Corp. v. United States, 846 F.3d 1364, 1384-85 (Fed. Cir. 2017) (explaining that where an agency's procedural error affects the record and leaves "uncertainty" as to whether any prejudice occurred, court will refuse to find that error to be harmless).
Corps of Engineers Omaha Lowering Cold Brook Lake Level Five Feet
OMAHA, Nebraska, Oct. 18 -- The U.S. Army Corps of Engineers issued the following news release:
A small release will be initiated Monday, Oct. 21, at Cold Brook Lake near Hot Springs, South Dakota, to lower the lake five feet. This drawdown will allow for installation of enlarged culverts and improvement of the low-water crossing on the northwest side of the lake.
Larger culvert capacity will reduce backwater impacts to the campground upstream of the lake.
The current pool elevation is 3585.5 feet. The release will last two to three weeks or until the pool elevation nears the target elevation
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OMAHA, Nebraska, Oct. 18 -- The U.S. Army Corps of Engineers issued the following news release:
A small release will be initiated Monday, Oct. 21, at Cold Brook Lake near Hot Springs, South Dakota, to lower the lake five feet. This drawdown will allow for installation of enlarged culverts and improvement of the low-water crossing on the northwest side of the lake.
Larger culvert capacity will reduce backwater impacts to the campground upstream of the lake.
The current pool elevation is 3585.5 feet. The release will last two to three weeks or until the pool elevation nears the target elevationof 3580.0 feet.
The lake will be held near this level for four to six weeks. Releases are not expected to exceed 10 cubic feet per second and shouldn't impact any downstream landowners.
Releases have been coordinated with Fall River County Emergency Management and the City of Hot Springs, South Dakota.
Commerce Secretary Ross Issues Remarks at Launch of U.S.-Kuwait Business Council
WASHINGTON, Oct. 18 -- The U.S. Department of Commerce issued the following remarks by Secretary Wilbur L. Ross Jr. at the launch of the U.S.-Kuwait Business Council:
"The two of us met shortly after I started my tenure as the Commerce Secretary, and we have worked together many times since. I had the honor of attending the U.S. - Kuwait Economic Forum organized by the Chamber in 2017. And together we celebrated the National Day of Kuwait earlier this year, as well as in 2018.
"My second official meeting after being confirmed as Secretary of Commerce was with His Excellency Khaled Al-Roudan,
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WASHINGTON, Oct. 18 -- The U.S. Department of Commerce issued the following remarks by Secretary Wilbur L. Ross Jr. at the launch of the U.S.-Kuwait Business Council:
"The two of us met shortly after I started my tenure as the Commerce Secretary, and we have worked together many times since. I had the honor of attending the U.S. - Kuwait Economic Forum organized by the Chamber in 2017. And together we celebrated the National Day of Kuwait earlier this year, as well as in 2018.
"My second official meeting after being confirmed as Secretary of Commerce was with His Excellency Khaled Al-Roudan,Kuwait's Minister of Commerce and Industry, who was accompanied, as usual, by Ambassador Al Sabah. At the U.S.-Kuwait Strategic Dialogue held earlier this year, the Commerce Department and the Kuwait National Fund for SME Development signed an MOU to promote innovation, entrepreneurship, and development of SMEs in both of our countries.
"Today, we celebrate the fruits of these collective efforts to fortify our commercial bonds. This new council will provide our governments with the recommendations we need to improve our economic relationship. The Council will help American and Kuwaiti companies -- and, importantly, their workers -- to flourish in each other's market.
"Kuwait's ambitious "New Kuwait 2035" program should provide opportunities in Kuwait for American companies in infrastructure, construction, healthcare, environmental technologies, finance, and public administration. The new plan proposes major business reforms; and includes infrastructure projects that total $124 billion. Kuwait will create five new cities; invest in roads and rail; and build an airport, a large refinery, and a major petrochemical complex for olefins and aromatics. I hope American companies will attend the "New Kuwait Summit" scheduled in Kuwait on December 10th through 11th, to learn about these opportunities.
"Often, the success of American firms in foreign markets is dependent upon the success of our government-to-government interactions. Individual companies have difficulty eliminating adverse foreign market barriers on their own. Kuwait ranks 97th on the 2019 World Bank Ease of Doing Business Ranking. That is where the U.S. government plays an important role for both American companies and the Kuwaiti government.
"Our Foreign Commercial Service officers located in the U.S. Embassy in Kuwait City engage daily with U.S. company executives, and officials from the Kuwait government. They help American firms form joint ventures with reputable Kuwaiti companies; and they specialize in opening local markets. The Commerce Department also has a regional intellectual property attache office in Kuwait City.
"These professionals help U.S. and Kuwaiti companies protect their patents and designs, their investments, and their competitive advantage. With their help, the Kuwait government passed a new copyright law this past summer. And, just recently, Kuwait's Ministry of Commerce and Industry conducted a series of high-profile raids against stores selling counterfeit goods.
"The Commerce Department's Commercial Law Development Program is also active in Kuwait. Our CLDP officers are currently working with Kuwaiti government officials on crafting a new procurement law that improves competition and transparency. Kuwait is a key target market for foreign direct investment into the United States. At this year's SelectUSA Summit in June, we were happy to welcome 16 Kuwaiti investors, the largest delegation ever from there. Companies from Kuwait have invested more than $1.5 billion in the United States, supporting 1,500 American jobs.
"The most recent big investment was made by Kuwait's Petrochemical Industries Company: A $1 billion joint venture with Dow Chemical, for a new facility that opened this past September 9th just south of Galveston, Texas. Kuwait is also the destination for $3 billion worth of U.S. exports. We want to see that amount grow. Our trade discussions with Kuwait depend on you providing us with information on the barriers to your success.
"The U.S.-Kuwait Business Council will be a key source of advice about how we can promote opportunities for American companies in Kuwait. We look forward to working with you to improve the fortunes and lives of the citizens of both our countries. The United States and Kuwait have a long, rich heritage together, and we want to remain great partners for many years to come.
"Thank you, again, to the U.S. Chamber for hosting the launch of the new U.S.-Kuwait Business Council. And to you, Ambassador Al Sabah, for so ably representing your government's dedication to our trusted partnership.
"Thank you."
