Slip Op. 16-20

UNITED STATES COURT OF INTERNATIONAL TRADE

TRI UNION FROZEN PRODUCTS, INC. ET AL.,

Plaintiffs and Consolidated 

Plaintiffs,

v.

UNITED STATES,

Defendant,

and

AD HOC SHRIMP TRADE ACTION 

COMMITTEE,

Defendant-Intervenor.

Before: Claire R. Kelly, Judge

Consol. Court No. 14-00249

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 AntiDumping 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-cmts062014.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 extrarecord 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