2011 WL 1336475
Ct. Int'l Trade2011Background
- Giorgio seeks to compel the United States to file and provide ITC records from the 1998-99 antidumping investigations on preserved mushrooms (Chile, China, India, Indonesia) for CDSOA distributions.
- Giorgio previously indicated no position on Chile, China, and Indonesia petitions, but opposed India; it allegedly took actions to support the petitions.
- ITC determined Giorgio was not an eligible petitioner to be placed on the petition support list and thus ineligible for CDSOA distributions.
- Giorgio filed this action in May 2003 challenging its exclusion and seeking to supplement the administrative record with ITC/documents from the original investigations.
- Plaintiff identifies a broad set of requested documents believed to be within the ITC’s original investigations as necessary to show supported petition activity.
- The court grants Giorgio’s motion to complete the ITC record, finding that the required documents from the original investigations were or would have been considered indirectly by the ITC.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the record should be completed with original-investigation documents. | Giorgio claims these documents were consulted or should have been considered by the ITC. | ITC relied on a limited record; the court should use the record the ITC relied upon for Byrd Act distributions. | Yes; complete record required. |
| Whether documents considered indirectly by ITC are part of the administrative record. | Indirectly consulted materials from underlying investigations are within the record. | Only documents explicitly relied upon by ITC matter; outside materials should not be added. | Indirectly consulted materials are part of the record. |
| Whether SKF precedence governs entitlement to CDSOA distributions based on petition support actions. | SKF requires consideration of active support actions rather than viewpoint-based speech. | ITC's determinations were limited; SKF does not alter the record scope here. | SKF supports inclusion of active-support materials in the record. |
Key Cases Cited
- SKF USA, Inc. v. U.S. Customs and Border Prot., 556 F.3d 1337 (Fed. Cir. 2009) (defines active support requirement for CDSOA distributions)
- Defenders of Wildlife v. Dalton, 24 CIT 1116 (2000) (whole administrative record standard; completing record considerations)
- Ammex, Inc. v. United States, 23 CIT 549 (1999) (record designation and completeness principles in administrative review)