Slip Op.

UNITED STATES COURT OF INTERNATIONAL TRADE 

SOUTHERN CROSS SEAFOODS, LLC, 

Plaintiff, 

v. 

UNITED STATES, 

and 

NATIONAL MARINE FISHERIES 

SERVICE, 

Defendants. 

Before: Timothy M. Reif, Judge 

Court No. 22-00299 

PUBLIC VERSION 

OPINION AND ORDER 

[Denying in part plaintiff’s Motion to Supplement the Administrative Record concerning 

five categories of documents and ordering defendants to provide an explanation 

concerning the remaining category.] 

Dated:2FWREHU

David E. Bond, Earl W. Comstock, Lucius B. Lau, Cristina M. Cornejo, White & Case, 

LLP, of Washington, D.C., for plaintiff Southern Cross Seafoods, LLC. 

Sosun Bae, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. 

Department of Justice, of Washington, D.C., for defendant United States. With her on 

the brief were Brian M. Boynton, Principal Deputy Assistant Attorney General, Patricia 

M. McCarthy, Director, L. Misha Preheim, Assistant Director.

Keith A. Hagg, Attorney-Advisor, National Oceanic Atmospheric Administration, Office 

of General Counsel of Silver Spring, M.D. for defendant National Marine Fisheries 

Service. 

Reif, Judge: Before the court is the motion to supplement the administrative 

record of plaintiff Southern Cross Seafoods, LLC (“plaintiff” or “Southern Cross”) 
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subsequent to the motion to dismiss by defendants the United States (“the 

government”) and the National Marine Fisheries Services (“NMFS”)1 (collectively, 

“defendants”) of plaintiff’s complaint concerning the denial of its preapproval application 

for imports of Dissostichus eleginoides, commonly referred to as Patagonian toothfish 

(“toothfish”) harvested from the Food and Agricultural Organization of the United 

Nations Statistical Subarea 48.3 in the South Georgia fishery (“Subarea 48.3”) in the 

Atlantic Ocean north of Antarctica. 

For the reasons outlined below, the court denies plaintiff’s motion to supplement 

the administrative record for Document Categories 1, 3, 4, 5 and 6 and orders 

defendants to file an explanation of their position concerning Document Category 2. 

BACKGROUND 

Plaintiff seeks a declaratory judgment against the denial of future applications for 

preapproval of its imports of toothfish from Subarea 48.3 due to the lack of a 

conservation measure (“CM”) in force for the Convention on the Conservation of 

Antarctic Marine Living Resources (“CAMLR Convention”). Corrected Compl. ¶¶ 9, 12, 

54, ECF No. 14. Plaintiff challenges also the actions of NMFS under the Administrative 

Procedure Act (“APA”), 5 U.S.C. § 706(2). Id. ¶¶ 8-9, 56, 58. In defendants’ motion to 

dismiss, defendants argue that plaintiff’s action does not arise out of a law providing for 

1 NMFS is a federal agency within the National Oceanic and Atmospheric Administration 

(“NOAA”). Corrected Compl. ¶ 15. NOAA is situated within the U.S. Department of 

Commerce (“Commerce”). Id. 
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an “embargo” or other “quantitative restriction” under 28 U.S.C. § 1581(i) and that, even 

if it did, the Court lacks subject matter jurisdiction because the district courts have 

exclusive jurisdiction pursuant to 16 U.S.C. § 2440. Defs.’ Mot. Dismiss (“Defs. Mot. 

Dismiss”) at 1, ECF No. 25. Plaintiff opposes the motion to dismiss. Pl.’s Resp. in 

Opp’n to Defs.’ Mot. Dismiss (“Pl. Resp.”), ECF No. 26. 

On June 20, 2023, plaintiff filed a motion to supplement the administrative record. 

Pl.’s Mot. Supp. Admin. R. (“Pl. Mot. Supp.”), ECF No. 37. In its motion to supplement 

the administrative record, plaintiff delineates six categories of documents that plaintiff 

alleges are missing from the administrative record; plaintiff argues that the absence of 

these documents from the administrative record renders the administrative record 

before the court incomplete. Id. at 2. On July 24, 2023, defendants filed their response 

in opposition to plaintiff’s motion to supplement the administrative record, arguing that 

NMFS did not directly or indirectly rely on the categories of documents requested by 

plaintiff, the documents requested are not in possession of NMFS and they are predecisional or privileged and are not properly part of the administrative record. Defs.’ 

Resp. Opp’n. Pl.’s Mot. Supp. Admin. R. (“Defs. Resp. Mot. Supp.”), ECF No. 42. 

LEGAL FRAMEWORK 

 Under section 706 of the APA, a court “review[s] the whole record or those parts 

of it cited by a party. . . .” 5 U.S.C. § 706. The Supreme Court has defined “whole 

record” for an APA action under 5 U.S.C. § 706 as “the full administrative record that 

was before the Secretary at the time he made his decision.” Citizens to Preserve 
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Overton Park, Inc. v. Volpe, 401 U.S. 402, 419-20 (1971). A whole administrative 

record “consists of all documents and materials directly or indirectly considered by 

agency decision-makers and includes evidence contrary to the agency’s position.” 

Exxon Corp. v. Department of Energy, 91 F.R.D. 26, 32 (N.D. Tex. 1981). This includes 

“all materials that might have influenced the agency’s decision. . . .” Amfac Resorts LLC 

v. U.S. Dep’t of Interior, 143 F. Supp. 2d 7, 12 (D.D.C. 2001) (internal quotation marks 

omitted); see also Thompson v. U.S. Dep’t of Labor, 885 F.2d 551, 555 (9th Cir. 1989). 

The court notes that the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. 

Circuit”) has identified three narrow instances in which supplementation of an 

administrative record may be appropriate before reaching the merits of an APA 

challenge to agency action: “(1) if the agency ‘deliberately or negligently excluded 

documents that may have been adverse to its decision,’ (2) if background information 

was needed ‘to determine whether the agency considered all the relevant factors,’ or (3) 

if the ‘agency failed to explain administrative action so as to frustrate judicial review[.]’” 

City of Dania Beach v. FAA, 628 F.3d 581, 590 (D.C. Cir. 2010) (quoting American 

Wildlands v. Kempthorne, 530 F.3d 991, 1002 (D.C. Cir. 2008)). 

 “An agency enjoys a presumption of regularity as to the record it prepares, 

because the agency, as the decision-maker, is generally in the best position to identify 

and compile those materials it considered.” JSW Steel (USA) Inc. v. United States, 44 

CIT, __, __, 466 F. Supp. 3d 1320, 1328 (2020) (citing Fund for Animals v. Williams, 

245 F. Supp. 2d 49, 55-57 (D.C. Cir. 2003); Pacific Shores Subd. v. U.S. Army Corps of 
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Eng., 448 F. Supp. 2d 1, 5 (D.D.C. 2006)). “Where an agency presents a certified copy 

of the complete administrative record, as was done in this case, ‘the court assumes the 

agency properly designated the Administrative Record absent clear evidence to the 

contrary.’” Defenders of Wildlife v. Dalton, 24 CIT 1116, 1119 (2000) (quoting Ammex, 

Inc. v. United States, 23 CIT 549, 549, 62 F. Supp. 2d 1148, 1156 (1999)). “In an 

administrative review case, it is rare that a federal court will consider information outside 

of the [administrative] record submitted” by the agency. Giorgio Foods, Inc. v. United 

States, 35 CIT 297, 299-300, 755 F. Supp. 2d 1342, 1346 (2011) (citing Advanced 

Tech. & Materials Co. v. United States, 34 CIT 598, 603 (2010)). 

 Supplementing the administrative record with additional documents is distinct 

from supplementing the record “upon a showing that the administrative record is not 

complete.” Advanced Tech., 34 CIT at 604. “Although record supplementation on 

these grounds is often viewed as one of the ‘exceptions’ to the record rule . . . it is 

described more accurately as ‘completing’ the record because the material sought to be 

included is only that which (allegedly) should have been a part of the record to begin 

with.” Id. (citing Pacific Shores, 448 F. Supp. 2d at 4). 

 “[C]ompleting the [administrative] record requires only that the moving party show 

that the record filed is not complete, supplementing the record requires the further 

burden of showing bad faith by the agency.” Invenergy Renewables LLC v. United 

States, 44 CIT, __, __, 476 F. Supp. 3d 1323, 1354-55 (2020) (citations omitted). 
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 “In a motion to complete the administrative record, a party must do more than 

simply allege that the record is incomplete. Rather, a party must provide the [c]ourt with 

reasonable, non-speculative grounds to believe that materials considered in the 

decision-making process are not included in the record.” Defenders of Wildlife, 24 CIT 

at 1119 (citations omitted) (internal quotation marks omitted). 

 “Privileged and deliberative documents reflecting an agency’s internal 

deliberations do not form part of the administrative record, and, generally, are not 

discoverable so as to merit a privilege log, unless there is a showing of bad faith or 

improper behavior.” JSW Steel, at 466 F. Supp. 3d at 1328 (citing Stand Up for 

California! v. U.S. Dep’t of Interior, 71 F. Supp. 3d 109, 122-23 (D.D.C. 2014); Oceana, 

Inc. v. Ross, 440 U.S. App. D.C. 237, 247, 920 F.3d 855, 865 (2019)). 

DISCUSSION 

I. Motion to supplement or complete the administrative record 

 

 A. Positions of the parties 

Plaintiff in the instant action characterizes its motion to supplement the 

administrative record as “not seeking to supplement the record with additional 

documents that were not previously before the agency.” Pl. Mot. Supp. at 1 (emphasis 

supplied). Rather, plaintiff asserts that it “is asking the [c]ourt to order [d]efendants to 

complete the record.” Id. (emphasis supplied). Plaintiff argues that the administrative 

record as it currently exists is not complete and “does not include certain documents 

that were directly or indirectly considered by decisionmakers at the NMFS when it 
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decided to deny Southern Cross’s application for pre-approval to import frozen toothfish 

from Subarea 48.3.” Id. at 3. As the basis for this assertion, plaintiff states that the 

supplemental requested documents “were directly or indirectly referenced by 

documents already included in the administrative record, demonstrating that they were 

considered directly or indirectly by the NMFS in its decision. . . .” Id. at 3-4. 

 Defendants allege that plaintiff’s argument “lacks any logical basis or legal 

support” and that “taking Southern Cross’s unsupported statement as true would result 

in an absurd situation where the record would never be considered complete, as every 

document referenced (even indirectly) in the documents included in the record because 

of reference by other documents would then need to be added as well, without end.” 

Defs. Resp. Mot. Supp. at 3. Defendants argue that they “have already included the 

documents properly part of the administrative record” and that all other documents 

requested by plaintiff are “either: 1) documents not directly or indirectly relied on by 

NMFS in rendering the decision at issue in this case; 2) not within the possession of 

NMFS; [or] 3) pre-decisional or privileged and therefore not properly part of the 

administrative record.” Id. at 1. 
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B. Analysis 

 Parties in the instant action categorize supplemental documents to complete the 

administrative record (Categories 1-6). The court accepts these categories for 

purposes of deciding the instant motion and considers each in turn.2 

 Plaintiff does not allege that defendants acted in bad faith in filing the 

administrative record. See Pl. Mot. Supp. Accordingly, the court decides the instant 

motion under the standard of completing the record. See Invenergy, 44 CIT __, 476 F. 

Supp. 3d at 1355 (deciding the motion to supplement under the standard of completing 

the record because plaintiff made no allegations of bad faith on the part of the 

government). Under this standard, the court examines whether plaintiff provides the 

“[c]ourt with reasonable, non-speculative grounds to believe that materials considered in 

the decision-making process [were] not included in the record.” Defenders of Wildlife, 

24 CIT at 1119 (citations omitted) (internal quotation marks omitted). 

 1. Document Category 1 

 Category 1 consists of a single document requested by plaintiff. Pl. Mot. Supp. 

at 4. Defendants included the document in their response to plaintiff’s motion to 

supplement. See Supp. to Admin. R. Paper, Delegations of Australia and the United 

States, Conservation at CCAMLR: Understanding Article II of the Convention on the 

2 The court notes that defendants included additional documents in the administrative 

record in their response in opposition to plaintiff’s motion to supplement. These 

documents are responsive to certain of plaintiff’s requests to complete the 

administrative record. See Defs. Resp. Mot. Supp., Ex. B (“Supp. to Admin. R.”) PR 

113-38, ECF No. 42. 
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Conservation of Antarctic Marine Living Resources (CCAMLR-XXXV/BG/28) (Sep. 17, 

2016), PR 115. Accordingly, the court concludes that plaintiff’s request for this 

document has been satisfied and, accordingly, the court denies plaintiff’s motion. 

 2. Document Category 2 

 Plaintiff’s requests in Category 2 comprise two types of documents: (1) “any 

information or supporting communications to indicate how the NMFS obtained the 

outside legal opinions included in the administrative record” and (2) “any information or 

supporting communications identifying who authored the legal opinion titled ‘Legal 

Opinion in relation to the toothfish fishing licenses granted by the Government of South 

Georgia for the 2022 season in the 48.3 area of CCMALR.’” Pl. Mot. Supp. at 4 (citing 

Legal Opinion in Relation to the Toothfish Fishing Licences Granted by the Government 

of South Georgia for the 2022 Season in the 48.3 area of CCMALR (“Legal Opinion”),

PR 104). 

 As to the first type of documents requested, defendants state that “the legal 

opinions were not solicited by NMFS in any manner, but rather simply submitted 

unsolicited by certain external groups.” Defs. Resp. Mot. Supp. at 4 (citing Defs. Resp. 

Mot. Supp., Declaration of Janet Coit,3 Ex. A (“Coit Decl.”) ¶ 13 ); see Legal Opinion, 

PR 104. Defendants argue that, because such legal opinions were unsolicited, “there is 

3 Janet Coit (“Coit”) serves as the Assistant Administrator for NMFS within NOAA. 

Coit’s responsibilities include overseeing the work of the Office of International Affairs, 

Trade and Commerce within NMFS and administering the agency’s responsibilities 

under the AMLRCA. Coit Decl. ¶ 1. 

 
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no reasonable basis to conclude that NMFS decisionmakers relied on the obtaining of 

the outside legal opinions in rendering the decision, and any such documents would not 

properly be part of the administrative record.” Id.

 Concerning the second type of supplemental information requested — the name 

of the author of the Legal Opinion — defendants submit an additional document in 

response to plaintiff’s request. Id.; Email forwarded by Kimberly Dawson4 to Meggan 

Engelke-Ros and Mi Ae Kim5 (Aug. 21, 2022), originally sent by Ignacio Arocena to 

Kimberly Dawson and Lori Robinson (Aug. 19, 2022) (“August 2022 Email”)), PR 125. 

Coit iterates that records were searched for the author of the opinion to no avail but 

defendants included in the administrative record in response to plaintiff’s motion to 

supplement “one email regarding the genesis of the legal opinion.” Coit Decl. ¶ 14. 

 The court notes that the substance of the email to which the “Legal Opinion” is 

attached states “Interesting, from COLTO via Ignacio..[sic].” August 2022 Email. 

The court identifies a potential inconsistency in the original inclusion by NMFS of the 

Legal Opinion in the administrative record and defendants’ assertion that NMFS did not 

consider unsolicited outside legal opinions. Compare Legal Opinion, PR 104 with Defs. 

4 Kimberly Dawson is a Fisheries Biologist/NOAA Fisheries within the Office of 

International Affairs, Trade and Commerce. See Kimberly Dawson’s Email signature 

line, PR 12. 

5 Both Meggan Engelke-Ros and Mi Ae Kim have emails ending in “noaa.gov.” See 

August 2022 Email. Without drawing conclusions about their respective roles and titles 

within NOAA without such descriptions in the administrative record, the court notes that 

both recipients hold positions within NOAA. 
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Resp. Mot. Supp. at 4 (stating “there is no reasonable basis to conclude that NMFS 

decisionmakers relied on the obtaining of the outside legal opinions in rendering the 

decision, and any such documents would not properly be part of the administrative 

record.”) Defendants have not sufficiently explained why, if NMFS did not in fact 

consider directly or indirectly any outside legal opinions in rendering its decision, NMFS 

included the Legal Opinion in the administrative record. Further, defendants have not 

sufficiently explained the reason that the “unsolicited” nature of the external legal 

opinions necessarily equates to NMFS disregarding the unsolicited legal opinions in its 

decision-making. See Defs. Resp. Mot. Supp. at 4. In light of the foregoing, the court 

directs defendants to explain with reference to each point noted above the apparent 

inconsistencies in (1) their assertion as quoted above at page 4 of their Response in the 

instant action with their inclusion of the Legal Opinion in the administrative record, and 

(2) the comment in the email from Kimberly Dawson, quoted above, that the Legal 

Opinion was “interesting.” 

 3. Document Category 3 

 Documents in Categories 3, 4 and 5 relate to a letter of December 17, 2021, from 

Alexa Cole of NOAA to Constance Arvis of the U.S. Department of State6, stating that 

“NMFS has determined that the importation of [toothfish from subarea 48.3] . . . would 

6 Parties refer to the U.S. Department of State (“State Department”) as the State 

Department, DOS or State in their briefs and within the record interchangeably. E.g., Pl. 

Mot. Supp. at 5-6; e.g., Defs. Resp. Mot. Supp. at 6. 
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be prohibited . . . until such time that CCAMLR adopts a conservation measure to set 

catch limits for that area.” Pl. Mot. Supp. at 5 (citing Letter from Alex Cole to Constance 

Arvis (Dec. 17, 2021) (“Letter of December 17”), PR 21). 

 Category 3 documents are “emails, notes, or correspondence prior to December 

17, 2021 relating to the NMFS determination that the importation of toothfish from 

CCAMLR Subarea 48.3 would be prohibited.” Pl. Mot. Supp. at 5-6 (citing Email from 

Alexa Cole to Seth Sykora-Bodie (Jan. 10, 2022), PR 3 (“There were a number of 

State/NOAA conversations that preceded our letter. . . .”) (emphasis omitted); Letter of 

December 17, PR 21). 

Plaintiff states that the administrative record is incomplete because it does not 

include the documents or notes leading up to the email from Alex Cole to Constance 

Arvis. Pl. Mot. Supp. at 6. Plaintiff argues that emails, notes and conversations related 

to the consultations between NOAA and State “were at the very least indirectly 

considered by the agency decision-makers when they denied Southern Cross’s 

application.” Id. 

 Citing to the Declaration of Janet Coit, defendants respond that “the 

administrative record already contains all non-privileged and non-pre-decisional 

documents relating to the NMFS decision at issue.” Defs. Resp. Mot. Supp. at 4 (citing 

Coit Decl. ¶ 15). Further, defendants note that plaintiff has not cited to any authority 

that “pre-decisional documents reflecting the mental processes of NMFS 

decisionmakers are properly part of the administrative record.” Id. at 5. 
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 Absent a showing of bad faith and improper behavior, the court “assumes the 

record is complete where it has been certified by the agency.” Invenergy, 476 F. Supp. 

3d at 1355 (citing Giorgio Foods, 35 CIT at 300, 755 F. Supp. 2d at 1346). Plaintiff has 

not presented the court with sufficient evidence to conclude that NMFS acted in bad 

faith by not including in the administrative record documents that are pre-decisional or 

privileged. See JSW Steel, 466 F. Supp. 3d at 1328 (citing Stand Up, 71 F. Supp. 3d at 

122-23; Oceana, 920 F.3d at 865). As such, the court denies plaintiff’s motion to 

complete the record concerning documents in Category 3. 

 4. Document Category 4 

 Category 4 documents consist of “any communications between the State 

Department, the NMFS and other CCAMLR member Commissioners informing them of 

the NMFS decision to prohibit the importation of toothfish caught in Subarea 48.3 during 

periods where there is no CCAMLR catch limit in place.” Pl. Mot. Supp. at 6. Citing to 

the Letter of December 17, plaintiff asserts that there was an express request that 

“‘State coordinate with NMFS to inform other CCAMLR member Commissioners and 

U.S. fish dealers’ about the decision, PR 22, yet no record of such communications 

other than the email to the U.K. CCAMLR Commissioner Jane Rumble, see PR 1, are 

included in the administrative record.” Id. (citing to Letter of December 17, PR 22; Email 

from Constance Arvis to Jane Rumble, Elizabeth Phelps, David Goddard re: 48.3 – 

Importation issue, PR 1). 
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 Defendants assert that the administrative record already contains all nonprivileged and non-pre-decisional documents relating to the NMFS decision. Defs. 

Resp. Mot. Supp. at 4 (citing Coit Decl. ¶ 15). Defendants state also that “Southern 

Cross has not alleged any impropriety or bad faith on the part of NMFS (and cannot 

credibly do so).” Id. at 5. Citing to the Declaration of Janet Coit, defendants state that 

“because the documents described in [C]ategory 4 ‘merely relayed the position taken by 

NMFS in the Cole letter, NMFS did not directly or indirectly consider them in making’ the 

decision at issue in this case.” Id. (citing Coit Decl. ¶ 20). Further, defendants state that 

“[t]o the extent that any documents responsive to [C]ategory 4 are within the possession 

of DOS rather than NMFS, they would not be properly part of the administrative record, 

as they are not in the possession of NMFS and therefore would not have been 

considered by NMFS in rendering its decision.” Id. at 6. 

 There is no basis for the court to conclude that documents in Category 4 should 

be part of the administrative record in the instant action. According to defendants and 

the Declaration of Janet Coit, the documents requested by plaintiff were not prepared by 

the NMFS decisionmaker and were not relied upon in the instant action. See Defenders 

of Wildlife, 24 CIT at 1123 (concluding that requested reports were not properly part of 

the administrative record because they were not prepared or considered by the relevant 

agency decisionmaker). As such, the court denies plaintiff’s motion to complete the 

record concerning documents in Category 4. 
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5. Document Category 5

Category 5 documents are “initial exchanges between representatives of the 

State Department and other delegations (namely the European Union and the U.K.) 

regarding fishing in Subarea 48.3 in the absence of a catch limit adopted by the 

CCAMLR.” Pl. Mot. Supp. at 6-7. Plaintiff argues that the initial exchanges between the 

State Department and other delegations should be part of the administrative record 

because they were at least indirectly considered by NMFS. Id. (citing Email from Luis 

Molledo of the European Commission to Elizabeth Phelps of the State Department, PR 

111 (referring to “initial exchanges on 48.3 with [Phelps’] delegations[,]”)). 

Concerning documents in Category 5, defendants state that “NMFS has no 

documents in its possession that are responsive to this request.” Defs. Resp. Mot. 

Supp. at 6 (citing Coit Decl. ¶ 21). Defendants reiterate that such documents should not 

be part of the administrative record. Id. 

Plaintiff provides no evidence that NMFS reviewed or relied on the exchanges to 

which Luis Molledo referred in his email to Elizabeth Phelps. See Email from Luis 

Molledo of the European Commission to Elizabeth Phelps of the State Department, PR 

111 (referring to Molledo’s “initial exchanges on 48.3 with [Phelps’] delegations[,]”). 

Consistent with JSW Steel and the deference to which agencies are entitled in forming 

an administrative record, plaintiff does not show that NMFS acted in bad faith in not 

including any documents that might comprise Category 5. As the Court has stated 

previously, “[t]he purpose of limiting review to the record actually before the agency is to 
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guard against courts using new evidence to convert the arbitrary and capricious 

standard into effectively de novo review.” JSW Steel, 44 CIT at __, 466 F. Supp. 3d at 

1328 (internal quotation marks omitted) (quoting Axiom Res. Mgmt., Inc. v. United 

States, 564 F.3d 1374, 1380 (Fed. Cir. 2009)). 

For the foregoing reasons, the court denies plaintiff’s motion to complete the 

record concerning documents in Category 5. 

6. Document Category 6

Finally, plaintiff motions to supplement the administrative record with “any 

communications from non-governmental organizations (“NGOs”) and other 

governments regarding whether the importation of toothfish from Subarea 48.3 requires 

a CCAMLR catch limit or contravenes any CCAMLR conservation measure, including 

any CCAMLR circulars and any communications that the State Department received 

from the European Union, the U.K. or other governments in response to Luis Molledo’s 

March 4, 2022 email[.]” Pl. Mot. Supp. at 7 (citing Email from Luis Molledo of the 

European Commission to Elizabeth Phelps of the State Department, PR 111). 

In response, defendants stated that “without conceding that NMFS actually

indirectly considered the documents, [NMFS] will agree to include materials reflecting 

the communications that were in NMFS’s possession prior to the time of the 

decision[.]” Defs. Resp. Mot. Supp. at 7 (citations omitted). 

Upon review of defendants’ attachments and explanation thereof, the court 

determines that defendants’ additions are responsive to plaintiff’s motion to complete 
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the record and plaintiff’s request for documents in Category 6 has been satisfied. See

Supp. to Admin. R. Letter from the Russian Federation (May 23, 2022), PR 128; Letter 

from Argentina (June 17, 2022), PR 133; Aide-Memoire (March 28, 2022), PR 136. 

CONCLUSION 

The court concludes that defendants’ supplemental attachments in the form of 

the Declaration of Janet Coit and documents attached as supplements to the 

administrative record fulfill plaintiff’s motion to supplement the administrative record with 

respect to Document Categories 1 and 6. Defendants provide adequate explanation for 

the absence of documents in the administrative record comprising Categories 3 through 

5. Plaintiff has not demonstrated that the agency acted in bad faith and plaintiff has not

demonstrated improper behavior in the agency’s compilation of an administrative 

record. For Document Category 2, the court identifies a potential inconsistency 

between the inclusion by NMFS of the Legal Opinion in the initial administrative record 

and defendants’ assertion that unsolicited external legal opinions were not relied upon 

in issuing the NMFS decision to deny preapproval of importation of toothfish. 

Defendants have not sufficiently explained why, if NMFS did not in fact consider directly 

or indirectly any outside legal opinions in rendering its decision, NMFS included the 

Legal Opinion in the administrative record. The court directs defendants to explain, with 

reference to the points identified by the court at Section I.B.2 supra, the potential 

inconsistency between NMFS’ action and defendants’ subsequent explanation thereof. 
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For the reasons discussed, the court concludes that plaintiff’s request to 

supplement the administrative record has been satisfied for Categories 1 and 6 and 

denies plaintiff’s motion to supplement the administrative record concerning Categories 

3-5. With respect to Category 2, the court directs defendants to explain their position

regarding the Legal Opinion and the foregoing inconsistency in the original 

administrative record and defendants’ subsequent position. 

Accordingly, it is hereby 

ORDERED that plaintiff’s motion to supplement the record is denied for 

Document Categories 1 and 6 on the ground that plaintiff’s request to supplement the 

administrative record has been satisfied by defendants, and plaintiff’s motion to 

supplement the administrative record is denied for Document Categories 3, 4 and 5. 

ORDERED that defendants explain their position as to Document Category 2 

within 30 days of this order. Defendants’ supplemental explanation should not exceed 

1,000 words and should address the aforementioned apparent inconsistency. 

ORDERED that plaintiff respond to defendants’ supplemental explanation within 

21 days. Plaintiff’s response to defendants’ explanation should not exceed 1,000 

words. 

/s/ Timothy M. Reif 

Timothy M. Reif, Judge 

Dated: 

New York, New York 

2FWREHU