Slip Op. 20-89

UNITED STATES COURT OF INTERNATIONAL TRADE

CSC SUGAR LLC, Plaintiff,

v. UNITED STATES,

Defendant. Before: Leo M. Gordon, Judge

Court No. 20-00017

OPINION [Denying Plaintiff’s motion fo r judgment on the agency record.] Dated: June 25, 2020 Jeffrey S. Neeley, Nithya Nagarajan, Michael Klebanov, and Jos eph S. Diedrich Husch Blackwell, LLP, of Washingt on, DC for Plaintiff CSC Sugar LLC. Douglas G. Edelschick, Senior Trial Counsel, Commercial Litigat ion Branch, Civil Division, U.S. Department of Just ice, of Washington, DC for Def endant United States. With him on the brief were Joseph H. Hunt, Assistant Attorney G eneral, Jeanne E. Davidson, Director, and Reginald T. Blades, Jr., Assistant Dire ctor. Of counsel on the briefs was Paul K. Keith, 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. Zielinsky, Cassidy Levy Kent (U SA) LLP, of Washington, DC for D efendant-Intervenors the American Sugar Coalition, A merican Sugar Cane League, Ameri can Sugarbeet Growers Association, American S ugar Refining, Inc., Florida Sug ar Cane League, Rio Grande Valley Sugar Growers, Inc., Sugar Cane Growers Coope rative of Florida, and the United States Bee t Sugar Association. Rosa S. Jeong, Irwin P. Altschul er, and Sonali Dohale, Greenber g Traurig, LLP, of Washington, DC for Defendant-I ntervenor Cámara Nacional de L as Industrias Azucarera y Alcoholera. Stephan E. Becker and Sahar J. Haf eez, Pillsbury Winthrop Shaw Pittman, LLP, of Washington, DC for Defendant-I ntervenor Government of Mexico

.Court No. 20-00017 Page 2

Gordon, Judge: Before the court is the USCIT Rule 56.2 motion of Plaintiff CSC Sugar LLC (“Plaintiff” or “CSC Sugar”) for judgment on the admi nistrative record challenging the U.S. Department of Commerce’s (“Commerce”) fina l determination in Sugar from Mexico, 85 Fed. Reg. 3,613 (Jan. 22, 2020) (Amendmen t to Agreement Suspending the Countervailing Du ty Investigation) (“2020 CVD Am endment”). 1 See Pl.’s Mot. for J. on the Agency R. under CIT Rule 56.2, ECF No. 36 (“ Pl.’s Br.”); see also Def.’s Resp. in Opp’n to Pl.’s Rule 56.2 Mot. for J. on the Agency R., ECF No. 39 (“Def.’s Resp.”); Def.-Intervenor Gov’t of Mexico’s Resp. in Opp’n to Pl.’s ’s Mo t. for J. on the Agency R., ECF No. 40 (“Mexico Resp.”); Resp. of Def.-Intervenor Cámara Na cional de Las Industrias Azucarera y Alcoholer a in Opp’n to Pl.’s Mot. for J. on the Agency R., ECF No. 41, (“Cámara Resp.”); Def.- Intervenor Am. Sugar Coalition’s Resp. to Pl.’s ’s Mot. for J. on the Agency R., ECF No. 43 (“ASC Resp.”); Reply Memorandum in Support of Pl.’s Mot. for J. on the Agency R., ECF No. 45 (“Pl.’s Reply”). 2 The court has jurisdiction over this matter pursuant to Section 516A(a)(2)(B)(iv) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iv) (2012), 3 and 28 U.S.C. § 1581(c) (2012). For the reasons set forth below, the court deni es Plaintiff’s motion, and susta ins the 2020 CVD

Amendment.

1 CSC Sugar also filed a paralle l action, Court No. 20-00016, ch allenging Commerce’s amendment to the Antidumping Dut y (“AD”) Suspension Agreement ( “2020 AD Amendment”), which is addressed in this Court’s decision, Slip Op. 20-88, also issued this date. 2 All citations to parties' briefs and the agency record are to their confidential versions unless otherwise noted. 3 Further citations to the Tari ff Act of 1930, as amended, are t o the relevant provisions of Title 19 of the U.S. Code, 2012 edition.Court No. 20-00017 Page 3

I. Background In 2014, pursuant to a petition fi led by the American Sugar Coa lition, and its members (collectively, “ASC”), C ommerce and the U.S. Internatio nal Trade Commission conducted an investigation as to whether imports of sugar from Mexico were being subsidized, and whether such impo rts were injurious to the U.S. industry. After Commerce issued a preliminary determinati on that countervailable subsidi es were being supplied, Commerce, on behalf of the United States Government, and the Go vernment of Mexico (“Mexico”) negotiated and signed a s uspension agreement. See Su gar From Mexico, 79 Fed. Reg. 78,044 (Dep’t of Commerce Dec. 29, 2014) (suspensi on of CVD investigation) (“CVD Agreement”). In 2017, Commerce and Mexico negotiated amendments to the CVD A greement. See Sugar from Mexico, 82 Fed. Reg. 31,942 (Dep’t of Commerce J uly 11, 2017) (amendment to CVD Suspension Ag reement) (“2017 CVD Amendment”). Among other changes, this amendment altered the definition of “refined suga r.” See id. (amending definition of “refined sugar” to consist of sugar with polarity of 99.2 degrees and above, instead of 99.5 degrees and above) . In response, CSC Sugar comm enced an action challenging the 2017 CVD Amendment on procedural and substantiv e grounds. CSC Sugar demonstrated that Comme rce failed to maintain a compl ete record including memoranda of ex parte meetings as required pursuant to 19 U.S.C . § 1677f(a)(3).

The court issued two decisions u ltimately vacating the 2017 CVD Amendment. See CSC Sugar v. United States, 42 CIT ___, 317 F. Supp. 3d 1322 (2018) ; CSC Sugar v. UnitedCourt No. 20-00017 Page 4

States, 43 CIT ___, 413 F. Supp . 3d 1310 (2019) (“CSC Sugar II” ). The court assumes familiarity with these decisions. Thereafter, Commerce commenced a proceeding to consider and ado pt a new

CVD amendment. See CVD Statut ory Assessment Memo at 1–2, PD 4 101 (describing negotiation, notice and comment process, and signing of 2020 CV D Amendment). CSC Sugar now challenges the 2020 CVD Amendment arguing (1) that Co mmerce did not comply with recordkeeping requirements during the negotiation o f the 2020 CVD Amendment; (2) that the record does not support the need to bot h revise the polarity

standards for raw and refined su gar and incorporate a bulk ship ment requirement; and (3) that Commerce did not provi de a complete analysis of the pu blic interest requirement under 19 U.S.C. § 1673c(a)(2)(B ). See generally Pl.’s Br.

II. Standard of Review

The court sustains Commerce’s “ determinations, findings, or con clusions” unless they are “unsupported by substant ial evidence on the record, or otherwise not in

accordance with law.” 19 U.S.C § 1516a(b)(1)(B)(i). More specif ically, when reviewing agency determinations, findings or conclusions for substantial evidence, the court assesses whether the agency action is reasonable given the reco rd 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 rea sonable mind might

4 “PD ___” refers to a document contained in the public administ rative record, which is found in ECF No. 34-1, unless otherwise noted. “CD ___” refers to a document contained in the confidential administrative record, which is found in EC F No. 34-2, unless otherwise noted.Court No. 20-00017 Page 5

accept as adequate to support a conclusion.” DuPont Teijin Film s 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 ev idence has also been described as “something less than the weight of evidence, and the possibility of drawing two inco nsistent conclusions from the evidence does not prevent a n administrative agency’s findin gs from being supported by substantial evidence.” Consol o v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966). Fundamentally, though, “substantial evidence” is best understoo d as a word formula connoting a reasonableness review. 3 Charles H. Koch, J r., Administrative Law and Practice § 9.24[1] (3d ed. 202 0). Therefore, when addressin g a substantial evidence issue raised by a party, the court analyzes whether the challen ged agency action “was reasonable given the circumstances presented by the whole record.” 8A West’s Fed. Forms, National Courts § 3.6 (5th ed. 2020). Separately, the two-step framewor k provided in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–45 (1984), governs j udicial review of Commerce's interpretation of the countervailing duty statute. S ee United States v. Eurodif S.A., 555 U.S. 305, 316 (2009) (An agency's “interpreta tion governs in the absence of unambiguous statutory language to the contrary or un reasonable resolution of language that is ambiguous.”).

III. Discussion CSC Sugar first argues that because the 2020 CVD Amendment make s substantively the same changes to the CVD Agreement as the 2017 CVD Amendment, Commerce’s recordkeeping failure for the 2017 CVD Amendment “is carried over to theCourt No. 20-00017 Page 6

2020 record by reason of Commerce’s implicit reliance on this t ainted record.” Pl.’s Br. at 12. To the contrary, Commerce expressly clarified that it wo uld rely on “only” information placed on the record after October 18, 2019, the da te of the court’s decision vacating the 2017 CVD Amendment. See Period for Rebuttal Commen ts, PD 49 (“Commerce will only consider comments and factual information submitted to the official records of these proceedings after October 18, 2019.”). Accepting CSC Sugar’s position t hat Commerce implicitly relied on information from the 2017 proceeding would r equire the court to conclude th at Commerce acted in bad faith in conducting the 2020 proceeding. The law is clear t hat, absent “well-nigh irrefragable proof,” government off icials are presumed to act i n good faith in discharging their duties. McEachern v. Office of Personnel Management, 776 F.2d 1539, 1544 (Fed. Cir. 1985). Yet CSC Sugar appears to contend that Commerc e’s procedural failure in the negotiations over the 2017 CVD Amendment can never be re medied, maintaining that “[e]ven if the details of those ex parte meetings were dis closed now, which Commerce admitted it cannot do as part of the prior litigation, that wou ld not vindicate CSC Sugar’s right to participate in the process while the process is ongoin g.” Pl.’s Br. at 13. The court does not agree and rejects CSC S ugar’s argument that the proced ural defects of the 2017 proceeding somehow carried over to the 2020 proceeding. As for CSC Sugar’s argument that Commerce improperly cloned the record of the 2017 proceeding for the 2020 proceed ing, see Pl.’s Br. at 10–14 , there is no dispute that the changes in the 2020 CVD Amendm ent are substantively the sam e as those in the

2017 CVD Amendment. Nevertheles s, Defendant argues that “CSC is incorrect that theCourt No. 20-00017 Page 7

records are substantively identical.” Def.’s Resp. at 17. CSC S ugar ignores the crucial fact that it had the opportunity to develop the record of the 2 020 proceeding through submission of comments, rebuttal comments, and factual informat ion. See Comments on Suspension Agreement, PD 42; Rebut tal Comments, PD 58; Clarific ation of Rebuttal Comments, PD 66; Comments on Draf t Amendments to Suspension Agr eement, PD 85. This crucial fact undercuts Plaintiff’s attempt to equate the 2 020 proceeding with the 2017 proceeding. Cf. CSC Sugar II, 43 CIT at ___, 413 F. Supp. 3d at 1317 (explaining prejudice to CSC Sugar in the 2017 Amendment negotiations, noti ng “Commerce’s complete failure to follow § 1677f effectively prevented CSC Su gar from commenting on the ex parte materials and di scussions Commerce engaged in duri ng the CVD Amendment negotiations.”). Although certain information in the record of the 2020 proceedi ng was also in the record for the 2017 proceeding, th is fact alone does not demons trate that the procedural irregularity the court found in the 2017 proceeding carries ove r to the 2020 proceeding. CSC Sugar argues that information originally placed on the reco rd of the 2017 proceeding

is tainted and therefore should not be placed in the record of the 2020 proceeding. See Pl.’s Br. at 13. CSC Sugar’s arg ument is predicated on the view that this Court passed on

the merits of the information contained in the record of the 20 17 proceeding. Plaintiff is

mistaken. The reason for the c ourt’s order vacating the 2017 CV D Amendment was Commerce’s failure to memorialize ex parte meetings and no more . See CSC Sugar II, 43 CIT at ___, 413 F. Supp. 3d at 1318. Given Commerce’s expres s commitment to consider solely information submitted after October 2019, see P eriod for RebuttalCourt No. 20-00017 Page 8

Comments, as well as the fact that CSC Sugar had ample opportun ity to participate and comment on the new record, CSC S ugar has failed to demonstrate that “record supporting the 2020 Amendment is functionally the same as the record suppo rting the 2017

Amendment.” See Pl.’s Br. at 10. Aside from contending that the procedural defects of the 2017 p roceeding should be imputed to the 2020 proceeding, Plaintiff maintains that the “2020 Amendment suffers from procedural irregularities related to timing, which also de prived CSC Sugar of important procedural benefits.” Id. at 14–19. Specifically, CSC Sugar argues that Commerce rushed the 2020 proceeding, completing it in only six weeks, which left “simply no time (or willingness by Commerc e) ... to consider and address new information.” Pl.’s Br. at 15. Plaintiff’s contentions are not supported by the rec ord. CSC Sugar does not argue that Commerce’s swift completion of the 2020 proceeding v iolated any statutory or regulatory provisions. While Plaintiff contends that the procee ding did not provide adequate time for the submission and consideration of certain i nformation, see Pl.’s Br. at 18, it did not press Commerce for additional time to cure an y perceived procedural shortcomings or to submit additional information for the record , except for one instance. And, Commerce granted CSC Sugar’s sole extension request. See E xt. for Comments on Amendments to Draft Suspensi on Agreements, PD 29. CSC Sugar has thus failed to demonstrate that it was deprived of any procedural safeguards r egarding the information

on the 2020 CVD Amendment record. CSC Sugar also argues that “by statute and through practice, Co mmerce has a duty to publish appropriate notif ications and to issue instruct ions to Customs that putsCourt No. 20-00017 Page 9

into effect its published decisions.” Pl.’s Br. at 16. CSC Suga r notes that “Commerce held off on issuing the instructions to vacate the 2017 Amendment by almost seven weeks. Yet, it took only three weeks for Commerce to issue instruction s to implement the 2020 Amendment.” Id. Problematically, Plaintiff does not cite any st atutes, regulations, or practice that Commerce allegedly violated. Instead, CSC Sugar’s contention appears to

be that Commerce must have acted in bad faith by delaying its i nstructions to Customs in vacating the 2017 CVD Amendment. 5 Commerce’s instructions for the termination of the 2017 CVD Amendment specifically sta te that “as of [December 7, 2019], the CVD Agreement . . . is in effect and applies to all contracts enter ed into after [December 7, 2019.]” See Termination of Cus toms Instructions, PD 114. Therefore, the delay in issuing t he instructions did not impact the dates of the contracts to which the original CVD Agreement applied. Similarl y, Commerce’s

instructions for the 2020 CVD Amendment were informational and state that “[t]he 2020

5 Plaintiff does cite to this C ourt’s Order of December 6, 2019, in which the Court stated: This discrepancy in rationales indicates that the purpose of the stay is not to “permit an or derly transition to compliance with the Court’s judgm ents,” but instead to delay enforcement of the judgment until Commerce issues a “new” suspension agreement and tries to force Plai ntiff to start an appeal anew. Without attempting to discern the “true” motivation for the sta y of enforcement, it suffices to say that the difference inrationales asserted by the Defendant and the DefendantIntervenors gives the court pause. CSC Sugar II, 43 CIT at ___, 413 F. Supp. 3d at 1310 (Court No . 17-00214). Although the court did express concern about the “discrepancy” in ration ales for delay asserted by Commerce and other interested part ies, Plaintiff has not met it s burden in demonstrating any factual support that Commerce’s delay was actually the resu lt of bad faith.Court No. 20-00017 Page 10

CVD Amendment applies to all cont racts for Sugar from Mexico ex ported from Mexico on or after the signature date of t he Amended CVD Agreement, i.e., [January 15, 2020].” 2020 CVD Amendment Customs Instructions, PD 118. Thus, even pur suant to the Customs instructions, the origi nal CVD Agreement applied to con tracts for sugar from

Mexico from the time of the term ination of the 2017 CVD Amendme nt to the signing of the 2020 CVD Amendment. These facts make it difficult to accept CSC Sugar’s hoped for

inference that Commerce acted in bad faith in delaying its issu ance of instructions to

Customs. Turning to the merits, CSC Sugar maintains that Commerce’s adop tion of the 2020 CVD Amendment is unsupported by subs tantial evidence because “C ommerce has provided no evidence to show why the 2020 Amendment’s change in polarity standards are necessary in addition to the amendment’s bulk-shipment requ irement.” Pl.’s Br. at 20. Plaintiff also argues that “t he polarity standard adopted is co ntrary to law because Commerce must explain the ‘connec tion between the facts found a nd the choice made.’” Id. (citing Elec. Consumers Res. Council v. Fed. Energy Regulat ory Comm'n, 747 F.2d 1511, 1513 (D.C. Cir.1984)). Plaintiff’s argument that Commerce failed to provide a “reasone d explanation” for a change in the polarity threshold is misplaced. Commerce expla ined, throughout the negotiation of the 2020 CVD Amendment, why the changes to the p olarity thresholds forCourt No. 20-00017 Page 11

Refined Sugar 6 and Other Sugar 7 coupled with the inclusi on of the “bulk shipment” provision 8 for Other Sugar work in concert to “eliminate completely” the injurious effects of Mexican sugar imported into t he United States. See 19 U.S.C. § 1673c(c); see also CVD Statutory Assessment Memo, P D 101; Sugar Comments Memo, PD 102. Specifically, during the negotia tion of the 2020 CVD Amendment, Commerce explained that modifying the polarity thre sholds and including a bulk-shi pping provision would help to address two critical issues: (1) diminished supply of raw su gar for United States cane sugar refiners; and (2) decline in United States price of Refin ed Sugar caused by exports of Mexican sugar into the United States. See CVD Statutory Asse ssment Memo at 5–8 (explaining that “These changes to the definitions of Refined a nd Other Sugar ensure to the fullest extent possible, under the amended Agreements, the availability of supply of input sugar for U.S. cane refiners.”); Sugar Comments Memo at 5 –8 (“The change in polarity definition, which effect ively establishes a price incr ease for sugar with a polarity between 99.2 and 99.5, helps prevent price suppression or under cutting. The changes

6 “Refined Sugar” is defined as sugar at a polarity of 99.2 and above, as produced and measured on a dry basis . See 2020 CVD Amendment. 7 “Other Sugar” is defined as sugar at a polarity of less than 9 9.2, as produced and measured on a dry basis . See 2020 CVD Amendment. 8 The “bulk shipment” provision specifies that “Other Sugar must be exported to the United States loaded in bulk and freely flowing (i.e., not in a contai ner, tote, bag or otherwise packaged) into the hold(s) of an ocean-going vessel.” See 2020 CVD Amendment. “To be considered as Other Sugar, if S ugar leaves the Mexican mill in a container, tote, bag or other package (i.e., is not freel y flowing), it must be emptied from the container, tote, bag or other package into the hold of the ocean-going vessel for ex portation.” Id. “All other exports of Sugar from Mexico that are not transported in bulk a nd freely flowing in the hold(s) of an ocean-going vessel will be considered to be Refin ed Sugar for purposes of the Export Limit or Additional U. S. Needs Sugar, regardless of the polarity of that Sugar.” Id.Court No. 20-00017 Page 12

contained in the 2020 CVD Amendm ent support both objectives thr ough quantitative

restrictions that allow relativ ely more Other Sugar for U.S. re fining operations and further

restrict the amount of Refined Su gar (including sugar with a po larity between 99.2 and 99.5) in the U.S. market. ... The potential harm to CSC is uncert ain and limited, while the potential benefits to the domesti c industry as a whole are subs tantial. For these reasons, we do not find CSC’s arguments persuasive and we believe that t he changes to the polarity definitions, and other p rovisions of the 2020 Amendmen ts, are justified.”). Accordingly, Commerce reasonably explained why the polarity mod ification was necessary along with the bulk-shipping provision. With respect to CSC Sugar’s substantial evidence challenge, to prevail on a substantial evidence challenge to Commerce’s determination to i nclude both the polarity threshold modification as well as the bulk-shipping requirement , CSC Sugar needed to demonstrate that the record supports one, and only one, reasona ble outcome: that the bulk-shipping requirem ent “entirely eliminated” the injurious e ffect of the imported sugar and that the polarity thres hold change was redundant and unnece ssary. See Tianjin Wanhua Co. v. United States, 41 CIT ___, ___, 253 F. Supp. 3d 1 318, 1328 (2017) (emphasizing that claimants cha llenging Commerce’s determinatio ns that choose among various options must demonstrate that their position is the “on e and only reasonable” option on the record); Mitsubishi Heavy Indus. Ltd. v. United S tates, 275 F.3d 1056, 1062 (Fed. Cir. 2001) (“‘[T]he possibility of drawing two inconsiste nt conclusions from the evidence does not prevent an administrative agency's finding fr om being supported by substantial evidence.’” (quoting Consolidated Edison, Co. v. NL RB, 305 U.S. 197, 229Court No. 20-00017 Page 13

(1938))). Plaintiff does not explain how its preferred outcome is the one and only

reasonable choice on the record. See Pl.’s Reply at 15 n.8. It just offers a conclusory assertion that the bulk shipment requirement rendered the polar ity modification superfluous. Although CSC Sugar pr esented this argument to Comm erce, other parties (including Defendant-Intervenors) also responded with their own arguments and information. See, e.g., ASC Rebuttal Comments at 10, PD 59, CD 13 (contending that “[w]ithout both provisions, the likelihood that such sugar bypa sses refiners at the lower reference price increases”). Commerce directly addressed why it found both the bulk shipment provision and polarity modification necessary, explain ing: In our statutory memoranda, we identified distinct problems with the functioning of the original agreements and explained how the changes contained in the 2020 Amendments address those prob lems. We noted that ASC alleged that U.S. cane refiners were receiving a diminished supply of sugar for their proc essing operations and that imports of Mexican sugar were undercutting U.S. sugar prices. Specifically, ASC a lleged that Mexican “estandar” sugar was being sold for direct consumption at low prices, thus supplanting sales of refined sugar. The shipping requirements in the 2020 Amendm ents directly increase the likelihood that U.S. cane refiners will receive sufficient amounts of sugar for their operations, and all interested parties, including CSC, seem to agree on this point. The change in polarity definition, whi ch effectively establishes a price increase for sugar with a polarity between 99.2 and 99.5, helps prevent price suppressi on or undercutting. The changes contained in the 2020 CV D Amendment support both objectives through quantitative re strictions that allow relativ ely more Other Sugar for U.S. refining operations and further restrict the amount of Refined Su gar (including sugar with a polarity between 99.2 and 99.5) in the U.S. market. We also explained that the change in polar ity definition facilitates monitoring and verification. The changes contained in the 2020 Amendments work in concert with each other to ensureCourt No. 20-00017 Page 14

that, to the fullest extent possible, the 2020 Amendments meet the statutory requirement t o “eliminate completely” the injurious effects of exports. Sugar Comments Memo at 6; see also id. at 7 (“the changes to th e polarity definition are intended to address market conditions caused by Mexican sugar i mports and to eliminate completely the injury to the domestic industry caused by such i mports. The changes are not intended to ‘undercut the business model’ of CSC.”). Commer ce thus explained its determination based on information in the record. Accordingly, the court sustains the 2020 CVD Amendment (including the pol arity modification) as reasonab le (and therefore supported by subst antial evidence). Lastly, CSC Sugar contends that “Commerce failed to adequately address the public interest as required by 1 9 U.S.C. § 1673c(a)(2).” See Pl .’s Br. at 23–25. The record does not support CSC Sugar’s argument, as Commerce explained wh y the 2020 CVD Amendment is in the public inter est based on its analysis of th e criteria in 19 U.S.C. § 1673c(a)(2)(B). See CVD Statut ory Assessment Memo at 8–11; Su gar Comments

Memo at 9–11. 19 U.S.C. § 1673c(a)(2)(B) provi des that in evaluating whether a quantitative restriction agreement (such as the one included in the 2020 CVD Amendment) is in the public interest, Commerce shall consider: (i) whether, based upon the relative impact on consumer prices and the availability of supplies of the merchandise, the agreement would have a greater adverse impact on United St ates consumers than the imposition of antidumping duties;Court No. 20-00017 Page 15

(ii) the relative impact on the international economic interests of the Un ited States; and (iii) the relative impact on the competitiveness of the domestic industry producing the like merchandise, including any such impact on employment and investment in that industry.

19 U.S.C. § 1673c(a)(2)(B). CSC Sugar does not argue that the p ublic interest is better served by terminating the suspension agreement and issuing a co untervailing duty order. See Pl.’s Br. at 23–25; Pl.’s R eply at 17–20. Rather, it conten ds that the terms of the 2020 CVD Amendment (namely, the quantitative restriction agreement) are structured in a manner that precludes the 2020 CVD Amendment from being in the public interest, unlike the original CVD Agreement. As to the first factor, Commerce noted that the 2020 CVD Amendm ent limits the supply of Mexican sugar and revise s the export limit ratio of “ Other Sugar” and “Refined Sugar,” which helps (1) to count eract subsidies that incentiviz e Mexican overproduction, and (2) to support price stability for consumers in the United States. See CVD Statutory

Assessment Memo at 9. Commerce found that “the impact of either the amended CVD Agreement or the imposition of c ountervailing duties would be t o bring consumer prices for subject merchandise to fairly-traded market prices.” Id. Co nsequently, Commerce

determined that the 2020 CVD Amendm ent does not have a greater adverse impact on

United States customers than the imposition of countervailing d uties. Id. With respect to the second criterion, the 2020 CVD Amendment he lps to prevent unfairly traded imports of sugar w hile also promoting trade wit h Mexico, one of the UnitedCourt No. 20-00017 Page 16

States’ closest trading partners. See CVD Statutory Assessment Memo at 10. In simultaneously eliminating in jury to the United States indus try caused by imports of Mexican sugar and promoting tradi ng relationships, Commerce fou nd that the 2020 CVD Amendment promotes the international economi c interests of the United States. Id. CSC Sugar primarily challenges C ommerce’s analysis with respect to the third factor, which requires Commerce to assess “the relative impact on the competitiveness of the domestic industry produc ing the like merchandise.” 19 U. S.C. § 1673c(a)(2)(B)(iii); see Pl.’s Br. at 25–26. Plaintiff argues that “although Commerc e spills much ink across multiple memoranda under headings entitled ‘public interest,’ i n substance those discussions are really about the domestic industry’s interest—a nd making the largest companies in the domestic indus try more profitable (although Co mmerce prefers to refer to this as being “more competitiv e”)—to the exclusion of the ge neral public’s interest.” Id. at 24. Plaintiff also maintains that “even with respect to just the domestic industry,

Commerce still failed to address the full effect on the domesti c industry, including CSC Sugar—and the 2020 Amendment’s pot ential consequences to it.” I d. at 25. CSC Sugar argues that the statut e requires Commerce to examine competition within the U.S. industry, as we ll as the public interest as a w hole. During the proceeding, Commerce explained that “antidum ping and countervailing duty la ws are primarily concerned with the pricing behav ior of foreign producers, the p rices of foreign imports, and the impact of such imports on the U.S. domestic industry.” See Sugar Comments Memo at 10. Accordingly, Commerc e interpreted the phrase “compe titiveness of theCourt No. 20-00017 Page 17

domestic industry” to refer to the competitiveness of the domes tic industry as a whole in relation to foreign imports and foreign producers of subject me rchandise. Id.

Plaintiff contends that “Commerce has no special expertise or k nowledge in determining what the term ‘public interest’ means as a matter o f law.” Pl.’s Br. at 23. However, Plaintiff does not chall enge Commerce’s interpretation of § 1673c(a)(2)(B) with any reference to the legal framework that the court uses to res olve challenges to Commerce’s statutory interpreta tions (i.e., Chevron). See gener ally Pl.’s Br. To the extent that Plaintiff seeks to challenge Commerce’s interpretation of § 1673c(a)(2)(B), the court deems this argument waived as Plaintiff has failed to make this argument with any reference to the proper legal framework. See Nan Ya Plastics Co rp. v. United States, 810 F.3d 1333, 1347 (Fed. Cir. 2016) (obs erving that Plaintiff fail ed to make its statutory interpretation “arguments within the operative Chevron framewor k. That misstep typically warrants a finding of waiver.” (c iting United States v. Great A m. Ins. Co., 738 F.3d 1320, 1328 (Fed. Cir. 2013) (“It is well established that arguments t hat are not appropriately developed in a party's briefing may be deemed waived.”)); see a lso Zhejiang Sanhua Co. v. United States, 39 CIT ___, ___, 61 F. Supp. 3d 1350, 1358 (2 015) (citing Great American Insurance in holding that a party waived its arguments for failing to raise them within the operative Chevron fram ework); JBF RAK LLC v. United States, 38 CIT ___, ___, 991 F. Supp. 2d 1343, 1356 (2014) (same). Accordingly, the court will not address Plaintiff’s arguments that Commerce failed to properly interpre t § 1673c(a)(2)(B) in adopting the 2020 CVD Amendment, a nd instead address Plaintiff’ s argument that Commerce failed to reasonably appl y the statute in adopting the 2020 CVD Amendment.Court No. 20-00017 Page 18

In applying the third factor to the instant record, Commerce fo und that the 2020 CVD Amendment would have a positiv e impact on the competitivene ss of the domestic industry, including CSC Sugar. S ee Sugar Comments Memo at 10–11 . Specifically, the signatory producers/exporters of the 2020 CVD Amendment have ag reed to revise their prices of subject merchandise to “eliminate completely” the inj urious effect of Mexican sugar imported into the United S tates. Id. Additionally, Commer ce found that the amended definitions of “Refined Sugar” and “Other Sugar” ensure an adequate supply of input material is available to the United States industry for f urther processing, a crucial benefit that Commerce determined could not be guaranteed with a countervailing duty order. See CVD Statutory Assessm ent Memo at 9. As a result, Com merce found that the public interest as a whole was served. Accordingly, the court s ustains Commerce’s

determination that the 2020 CVD Am endment met the public intere st criteria of § 1673c(a)(2)(B).

IV. Conclusion For the foregoing reasons, Plaint iff’s motion for judgment on t he agency record is denied. Judgment will be ent ered accordingly.

/s/ Leo M. Gordon Judge Leo M. Gordon

Dated: June 25, 2020 New York, New York