                                    Slip Op. 16-20

               UNITED STATES COURT OF INTERNATIONAL TRADE


 TRI UNION FROZEN PRODUCTS, INC. ET AL.,

                     Plaintiffs and Consolidated
                     Plaintiffs,

       v.

 UNITED STATES,                                      Before: Claire R. Kelly, Judge

                     Defendant,                      Consol. Court No. 14-00249

       and

 AD HOC SHRIMP TRADE ACTION
 COMMITTEE,

                     Defendant-Intervenor.



                            MEMORANDUM AND ORDER

[Denying VASEP’s motion for judicial notice.]

                                                                 Dated: March 7, 2016

Jonathan Michael Freed, Trade Pacific, PLLC, of Washington DC argued for Plaintiffs Tri
Union Frozen Products, Inc., Mazzetta Company LLC, Ore-Cal Corporation, and
Consolidated Plaintiff Quoc Viet Seaproducts Processing Trading and Import-Export Co.,
Ltd. With him on the brief was Robert George Gosselink.

William Henry Barringer and Matthew Paul McCullough, Curtis, Mallet-Prevost, Colt &
Mosle LLP, of Washington DC argued for Consolidated Plaintiffs Vietnam Association of
Seafood Exporters and Producers and certain of its individual member companies. With
them on the brief were Claudia Denise Hartleben, Curtis, Mallet-Prevost, Colt & Mosle
LLP, of Washington DC, Alexandra Bradley Hess and Matthew Robert Nicely, Hughes
Hubbard & Reed LLP, of Washington DC.

Nathaniel Jude Maandig Rickard, Picard, Kentz & Rowe, LLP, of Washington DC argued
for Consolidated Plaintiff and Defendant-Intervenor Ad Hoc Shrimp Trade Action
Committee.
Consol. Court No. 14-00249                                                            Page 2


Joshua Ethan Kurland, Trial Attorney, and Kara Marie Westercamp, Trial Attorney,
Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington
DC, argued for Defendant. With him on the brief were Benjamin C. Mizer, Principal
Deputy Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M.
McCarthy, Assistant Director. Of Counsel on the brief was Mykhaylo Alexander Gryzlov,
Senior Attorney, Office of the Chief Counsel for Trade and Compliance, U.S. Department
of Justice, of Washington DC.

       Kelly, Judge: This matter is before the court on a motion for judicial notice filed by

Consolidated Plaintiffs Vietnam Association of Seafood Exporters and Producers and

certain of its individual member companies (collectively “VASEP”).           See generally

Consolidated Pls.’ Mot. for Judicial Notice, Dec. 3, 2015, ECF No. 90 (“Motion”). In the

Motion, VASEP asks that the court take judicial notice of certain information in further

support of its USCIT Rule 56.2 motion for judgment on the agency record challenging the

U.S. Department of Commerce’s (“Department” or “Commerce”) final determination in the

eighth administrative review of the antidumping duty order covering certain frozen

warmwater shrimp from the Socialist Republic of Vietnam for the period of February 1,

2012 through January 31, 2013. See generally id.; Resp’t Pls. VASEP and Individual

VASEP Members’ Br. Supp. Mot. J. Agency R., Mar. 30, 2015, ECF No. 50 (“VASEP

Br.”). Specifically, VASEP asks the court to take judicial notice of the following:

       1. Public comments submitted by university professors in response to a
       Department of Commerce request for public comments on differential
       pricing analysis published in the Federal Register.

       2. Academic articles on the Cohen’s d methodology that explain relevant
       underlying statistical principles, including an online statistics textbook
       published by an accredited university and an academic paper published at
       an educational research conference.
Consol. Court No. 14-00249                                                          Page 3


Motion 1. 1 On December 23, 2015, Defendant United States (“Defendant”) filed its

response opposing VASEP’s motion for judicial notice. See generally Def.’s Resp Opp’n

to Pls.’ Mot. for Judicial Notice, Dec. 23, 2015, ECF No. 96 (“Def.’s Resp.”). Defendant

argues that “VASEP’s motion misapplies the principle of judicial notice, and seeks to

improperly convert this Court’s examination of an agency’s action based on the contents

of the administrative record into de novo review.” Id. at 1. Specifically, Defendant argues

that judicial notice “is not appropriately exercised in a record-review case, such as this

one,” and “[c]ontrary to VASEP’s assertions, the materials it seeks to submit are not of

the type that satisfy the standards of judicial notice.” Id. at 2–3. On February 10, 2016,

the court held oral argument allowing the parties to further argue their positions on the



1   VASEP provided the following citations for the offered materials attached to its Motion:

     1. J. Gastwirth, R. Modarres, Q. Pan, “Some statistical aspects of the
        Department’s use of Cohen’s D in measuring differential pricing in Anti-
        Dumping cases that should be considered before it is formally adopted”,
        received           June        19,         2014,        available         at
        http://enforcement.trade.gov/download/dpa/diff-pricing-analysis-cmts-
        062014.html. (last viewed December 2, 2015).
     2. Online statistics Education: A Multimedia Course of Study
        (http://onlinestatbook.com/).   Project Leader: David M. Lane, Rice
        University., Chapter 19 “Effect Size”, Section 2 “Difference Between Two
        Means,”                              available                            at
        http://onlinestatbook.com/2/effect_size/two_means.html       (last  viewed
        December 2, 2015).
     3. Robert Coe, “It’s the Effect Size, Stupid: What effect size is and why it is
        important,” Paper presented at the Annual Conference of British
        Educational Research Association, September 2002, available at
        http://www.leeds.ac.uk/educol/documents/00002182.htm (last viewed
        December 2, 2015).

Motion 5.
Consol. Court No. 14-00249                                                               Page 4


issues in this case, including VASEP’s Motion. See generally Oral Arg., Feb. 10, 2016,

ECF No. 101. The other parties in this action have not taken a position on VASEP’s

Motion. For the following reasons, the court denies VASEP’s Motion. 2

                                         DISCUSSION

       Judicial notice is the means by which a court recognizes a fact in the absence of

evidentiary proof. “Judicial notice provides a flexible procedure to take notice that certain

information is true.” Weinstein on Evidence § 201.02[1]. Pursuant to 28 U.S.C. § 2641(a),

“the Federal Rules of Evidence shall apply to all civil actions in the Court of International

Trade.” 28 U.S.C. § 2641(a). Rule 201 of the Federal Rules of Evidence provides that a

court may, at any stage of the proceeding, take judicial notice of any fact “not subject to

reasonable dispute because: (1) it is generally known within the trial court’s territorial

jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy

cannot reasonably be questioned.” Fed. R. Evid. 201(b), (d). The court may take judicial

notice on its own without a request, but “must take judicial notice if a party requests it and

the court is supplied with the necessary information.” Fed. R. Evid. 201(c).




2
  In its USCIT Rule 56.2 motion for judgment on the agency record, VASEP also argues that
Commerce wrongfully rejected portions of mandatory respondent Minh Phu Group’s case brief
for containing untimely filed new factual information. See VASEP Br. 10–16. Much of the
information that VASEP argues Commerce wrongfully rejected from Minh Phu Group’s case brief
overlaps with the information that VASEP requests the court to take judicial notice of here. See
Motion 5; Rejection of New Information in Case Brief, PD 248 at bar code 3218413-01 (July 29,
2014). Despite this common aspect of both motions, the court notes that VASEP’s argument in
its motion for judicial notice is separate and distinct from the argument it has made with respect
to Minh Phu Group’s case brief in its Rule 56.2 motion, and thus the court’s decision here has no
bearing on the latter.
Consol. Court No. 14-00249                                                               Page 5


       To be entitled to judicial notice, the moving party must submit the necessary

information to show that the matter is not “subject to reasonable dispute because it: (1) is

generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and

readily determined from sources whose accuracy cannot reasonably be questioned.”

Fed. R. Evid. 201(b)–(c). Rule 201 of the Federal Rules of Evidence requires the court

to consider not only whether matter at issue is “not subject to reasonable dispute,” but

also whether it is not subject to reasonable dispute because it is either “generally known”

or “can be accurately and readily determined from sources whose accuracy cannot

reasonably be questioned.”         Fed. R. Evid. 201(b)(1)–(2).        Therefore, a condition

precedent to indisputability is whether the movant submits information showing the matter

“is generally known within the trial court’s territorial jurisdiction,” or, alternatively, “can be

accurately and readily determined from sources whose accuracy cannot reasonably be

questioned.” Fed. R. Evid. 201(b). VASEP’s Motion does not address either condition

precedent. VASEP fails to demonstrate that the information within the offered materials

are in any way not subject to reasonable dispute as required by the rule.

       The public comments are not properly the subject of judicial notice. VASEP has

supplied no information showing that the public comments are beyond reasonable

dispute, let alone beyond reasonable dispute because they are “generally known” or

capable of accurate verification “from sources whose accuracy cannot reasonably be

questioned.” Fed. R. Evid. 201(b). VASEP’s own motion concedes that the public

comments are in support of a particular position, not in any way indisputable:
Consol. Court No. 14-00249                                                         Page 6


       The public comments . . . were provided to the Department of Commerce in
       response to a request for comment on differential pricing. See Differential
       Pricing Analysis; Request for Comments, 79 Fed. Reg. 26,720 (Dep’t of
       Commerce May, 9, 2014). . . . These comments are relevant because they
       support Plaintiff’s position that the differential pricing approach applied in
       the underlying proceeding is fundamentally flawed.

Information that is relevant and supports one’s position is not the same as information

that is “not subject to reasonable dispute.” Beyond conclusory statements, VASEP fails

to address the applicable standard and fails to provide support for the proposition that the

public comments satisfy the requirements of Rule 201 of the Federal Rules of Evidence.

       VASEP asserts “[a] court may take judicial notice of information appearing on a

government website.” Motion 2. VASEP relies on two cases which are not binding on

this court and also fail to support VASEP’s position. See id. VASEP cites to Daniels-Hall

v. Nat’l Educ. Ass’n, 629 F.3d 992 (9th Cir. 2010), where the Ninth Circuit, in considering

a suit by employees in connection with “403(b) retirement plans,” took judicial notice of

information displayed on school district websites. See Daniels-Hall, 629 F.3d at 998–99.

VASEP also cites to Laborers' Pension Fund v. Blackmore Sewer Constr., Inc., 298 F.3d

600 (7th Cir. 2002), where the Seventh Circuit took judicial notice that one bank was a

branch office of another, which was information found on an official website of the Federal

Deposit Insurance Corporation.      See Laborers' Pension Fund, 298 F.3d at 607–08.

VASEP therefore argues that the court should take judicial notice of the public comments

because they “were provided to the Department of Commerce in response to a request

for comment on differential pricing” and "are available on Commerce’s website at

http://enforcement.trade.gov/download/dpa/diff-pricing-analysis-cmts-062014.html.”
Consol. Court No. 14-00249                                                          Page 7


Motion 2. However, VASEP’s reliance on these cases reveals a misunderstanding of the

standard.

       The fact that information appears on a government website does not make that

information generally known or readily verified for accuracy and thus not subject to

reasonable dispute. In Daniels-Hall, the court took judicial notice of a “list of approved

403(b) vendors” and “neither party dispute[d] the authenticity of the web sites or the

accuracy of the information displayed therein.” Daniels-Hall, 629 F.3d at 998–99. In

Laborers’ Pension, the court took judicial notice of the fact that one bank was a branch

office of and owned by another bank, which was not subject to reasonable dispute

because the truth of the matter could be “accurately and readily determined” from an

official website. Laborers’ Pension, 298 F.3d at 607–08. Here, however, the posted

information is subject to reasonable dispute. Defendant argues the public comments “are

not generally known within the trial court’s territorial jurisdiction and are subject to

reasonable dispute––indeed, the whole point of a party submitting comments is to

express its views and make an argument on a disputed issue.” Def.’s Resp. 3. The truth

of the public comments also cannot be accurately and readily determined by referring to

the government website. All that can be determined is that those comments were made,

which is not the purpose for which VASEP has offered the public comments. The

standard is not that the offered information is “not subject to reasonable dispute” because

it is published on a website, but rather, the standard is that the offered information is not

subject to reasonable dispute because it is “generally known” or “can be accurately and

readily determined from sources whose accuracy cannot reasonably be questioned.”
Consol. Court No. 14-00249                                                           Page 8


Fed. R. Evid. 201(b). Thus, it is not appropriate for the court to take judicial notice of the

public comments because VASEP has not demonstrated that they are not subject to

reasonable dispute.

       The academic materials are also not the proper subject of judicial notice. VASEP

again fails to demonstrate that the information contained within the academic materials is

not subject to reasonable dispute.        VASEP simply states that the materials are

“[a]cademic articles on the Cohen’s d methodology that explain relevant underlying

statistical principles, including an online statistics textbook published by an accredited

university and an academic paper published at an educational research conference” and

that “they are directly relevant to the differential pricing analysis that Commerce applied

in the underlying proceeding.” Motion 1, 3. VASEP additionally states that “[t]hese papers

are further unique in that Commerce in issuing its final results in the underlying proceeding

indirectly relied upon other aspects of the materials to support its own position.” Id. at 3.

Again, VASEP refers to these materials as “relevant” and “unique.” See id. However,

neither relevance nor uniqueness is the standard for judicial notice. The applicable

standard is whether the facts in the documents are not subject to reasonable dispute

because they are either “generally known” or “can be accurately and readily determined

from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b).

Nowhere does VASEP address this standard and explain why the information from the

academic materials is not reasonably subject to dispute. VASEP has simply failed to

supply “the necessary information” warranting judicial notice of the academic materials.

Fed. R. Evid. 201(c).
Consol. Court No. 14-00249                                                                  Page 9


       VASEP claims that the court should take judicial notice of the information in the

academic materials because it “undermine[s] Commerce’s rationale and underlying

assumptions.” Motion 3. But the standard for judicial notice is not whether the information

sought might undermine Commerce’s rationale, but whether the information is

indisputable because it is “generally known” or “can be accurately and readily determined

from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b).

VASEP’s citation to Borlem S.A. – Empreedimentos Industriais v. United States, 913 F.2d

933 (Fed. Cir. 1990), does not support its position that information that undermines

Commerce’s position is subject to judicial notice notwithstanding the standard embodied

in Rule 201 of the Federal Rules of Evidence. 3 In Borlem, the Court of Appeals for the

Federal Circuit considered the International Trade Commission’s (“ITC”) authority to

reconsider a determination pursuant to an order from the Court of International Trade.

See Borlem, 913 F.2d at 940. The Court of International Trade had ordered the ITC to

reconsider its affirmative threat of injury determination after taking judicial notice of




3
  VASEP also cites Union Camp Corp. v. United States, 23 CIT 264, 53 F. Supp. 2d 1310 (1999)
which is not binding on this court and, in any event, fails to support VASEP’s position. In Union
Camp, the court granted a motion to reconsider the court’s prior remand order finding that the
“Remand Order was ambiguous, in so far as Commerce interpreted the Remand Order as
preventing it from considering record evidence of market prices in valuing the octanol-2.” Union
Camp, 23 CIT at 264, 53 F. Supp. 2d at 1313. In doing so, the court took judicial notice of the
fact that “in its third administrative review of antidumping duties on sebacic acid from the [People’s
Republic of China], Commerce, on the basis of a letter from the editor of the Chemical Weekly
(India), reversed its previous position and found that the ‘octanol’ quote from this publication did
not refer to octanol–1.” Id. at 265, 53 F. Supp. 2d at 1313. Taking judicial notice of an agency’s
finding in a final determination is something that cannot be disputed because it can be accurately
and readily verified. That the court went on to direct the agency on remand to open the
administrative record and consider the letter from the judicially noticed determination does not
support supplementing of the record before the court in this case.
Consol. Court No. 14-00249                                                          Page 10


Commerce’s amended final determination of sales at less than fair value of tubeless steel

disc wheels from Brazil, noting:

       [T]his Court must take judicial notice of decisions of federal executive
       departments when requested by a party. See, Fed.R.Evid. 201; Caha v.
       United States, 152 U.S. 211, 221–22, 14 S.Ct. 513, 516–17, 38 L.Ed. 415
       (1894); 10 Moore's Federal Practice § 201.02(1) (2nd Ed.1988 &
       Supp.1989). Since plaintiff requested this Court to take judicial notice of the
       Second–Amended Determination by Commerce, this Court must and does
       take judicial notice of that determination. The Second–Amended
       Determination terminated suspension of liquidation for all entries of TSDWs
       from Brazil by FNV. In the Second–Amended Determination Commerce
       indicated the reason for the suspension was its finding of de minimis
       dumping margins.

Borlem S.A.-Empreedimentos Industriais v. United States, 13 CIT 535, 541, 718 F. Supp.

41, 46 (1989), aff'd and remanded, 913 F.2d 933 (Fed. Cir. 1990). The Court of Appeals

affirmed the Court of International Trade’s decision to take judicial notice of a finding in

an administrative proceeding. Borlem, 913 F.2d at 940. The Court of Appeals’ decision

in Borlem fits within the framework of the Rule 201(b). In Borlem, Commerce’s finding in

the amended final determination was not subject to dispute because the result reached

by Commerce was “on the record, having been published in the Federal Register,” and

could be accurately and readily determined. Borlem, 913 F.2d at 940. While one might

have contested that Commerce reached the correct result, one could not dispute that

Commerce reached the result it did. The latter point is the point that was judicially noticed.

Here, VASEP does not seek to have the court take notice of the fact that the academic

articles were written or that the public comments were made, it wishes to have the

information from those materials judicially noticed for the truth of the statements contained
Consol. Court No. 14-00249                                                          Page 11


within for the court to consider. VASEP has failed to put forth any showing that the truth

of the information from these materials is indisputable.

       VASEP’s argument that Commerce relied on the offered academic materials in the

final results here mischaracterizes Commerce’s conduct. VASEP states that “[t]hese

papers are further unique in that Commerce in issuing its final results in the underlying

proceeding indirectly relied upon other aspects of the materials to support its own

position. Specifically, Commerce relied upon findings and direct quotations from Certain

Activated Carbon from the People's Republic of China: Final Results of Antidumping Duty

Administrative Review, 77 Fed. Reg. 67,337 (Dep't of Commerce Nov. 9, 2012)

(“Activated Carbon”), I&D Memo at Comment 4.” Motion 3. However, as Defendant

correctly points out, Commerce relied on a prior determination that was reached after

considering similar materials, but Commerce did not rely upon those materials in reaching

its determination here. See Def.’s Resp. 4. The record in Activated Carbon, not the

administrative proceeding here, contained these materials. Commerce’s reliance on a

finding from a prior determination did not consequently incorporate the information from

the record of that proceeding to the record of the instant administrative review.

       Moreover, granting VASEP’s Motion in this case would run counter to a

fundamental principle of administrative law, namely that “the focal point for judicial review

should be the administrative record already in existence, not some new record made

initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142 (1973). The purpose of

judicial notice is to promote judicial economy by dispensing with formal proof when a

matter cannot be disputed. See Weinstein on Evidence § 201.02[2]. Judicial notice is
Consol. Court No. 14-00249                                                           Page 12


not meant to circumvent the creation and review of an agency record. Therefore, the

Court of Appeals has recognized, as a general rule supplementation of the administrative

record is not permitted. See Axiom Res. Mgmt. v. United States, 564 F.3d 1374, 1379–

80 (Fed. Cir. 2009) (determining the lower court abused its discretion by admitting extra-

record evidence because an administrative record “should be supplemented only if the

existing record is insufficient to permit meaningful review consistent with the APA”);

Murakami v. United States, 46 Fed. Cl. 731, 739 (2000), aff’d, 398 F.3d 1342 (Fed. Cir.

2005) (explaining that the court is disinclined to allow judicial notice to circumvent the rule

against supplementing an agency’s record on review). While there may be exceptions to

that general rule, such as when effective review cannot be had without the information,

see, e.g., Axiom Res. Mgmt., 564 F.3d at 1379–80 (Fed. Cir. 2009); Murakami, 46 Fed.

Cl. at 735, aff’d, 398 F.3d 1342 (Fed. Cir. 2005), grounds for an exception do not exist

here. VASEP gives the court no reason to ignore this general rule. There is no showing

that the absence of these materials precludes judicial review. The court declines to

consider information that was not a part of the administrative record before Commerce.

Most importantly, VASEP has made no showing that the information at issue is not subject

to reasonable dispute let alone not subject to reasonable dispute because it is generally

known or because its accuracy can be readily determined.

                                          CONCLUSION

       VASEP has not demonstrated that the public comments or the academic materials

meet the requirements of Rule 201 of the Federal Rules of Evidence. Therefore, upon
Consol. Court No. 14-00249                                                 Page 13


consideration of VASEP’s Motion, all papers and proceedings in this action, and upon

due deliberation, it is hereby

       ORDERED that VASEP’s motion for judicial notice is denied.



                                              /s/ Claire R. Kelly
                                             Claire R. Kelly, Judge



Dated:March 7, 2016
      New York, New York
