
    Roquette Freres and Roquette Corporation, plaintiffs v. United States, defendant, and Pfizer, Inc., intervenor
    Court No. 82-5-00636
    Before Boe, Judge.
    
    (Dated July 18, 1983)
    
      Wald, Harkrader & Ross (Joel E. Hoffman and Marilyn E. Kerst, of counsel) for the plaintiffs.
    
      J. Paul McGrath, Assistant Attorney General (David M. Cohen, Director, Commercial Litigation Branch and A. David Lafer; William E. Perry, Office of the General Counsel, International Trade Commission, of counsel) for the defendant.
    
      Barnes, Richardson & Colburn (E. Thomas Honey, of counsel) for the intervenor.
    
      Rivkin, Sherman & Levy (Saul L. Sherman and Lance E. Tunick) attorneys for ICI Americas Inc., amicus curiae.
    
   Boe, Judge:

The defendant has filed a motion requesting that the above-entitled action be remanded to the International Trade Commission for a determination by said Commission in the antidump-ing investigation involving Sorbitol From France that an industry in the United States was materially injured by reason of importation of sorbitol from France being sold at less than fair value. It is further moved that all further proceedings in this action be stayed pending the determination by the ITC on remand.

From its acquaintance to date with the record of the proceedings of the ITC certified for review, this court deems that clarification of the determination of the Commission and the findings on which it is based as well as clarification of the position of the respective members who participated, indeed, is appropriate.

A candid acknowledgment by the defendant in its memorandum in support of -its motion that substantial, relevant and material information contained in questionnaires was not included in the Commission’s staff report nor in any manner presented to the Commission during the course of the investigation may well serve to explain the considerable variance in the findings and the resulting determinations adopted by the respective Commission members.

To allow the record herein to stand in its present form, absent the substantial relevant information that should have been included in its staff report, and to permit a judicial review of the Commission’s determination and its supporting findings made upon an acknowledged incomplete record would be an intolerable miscarriage of justice and a blemish upon the review process of administrative determinations.

Now, Therefore, it is hereby

Ordered that the within action be and is hereby remanded to the International Trade Commission to consider in full all relevant information presently in its possession or which hereafter may be presented to it as to whether an industry was materially injured by reason of imported sorbitol from France being sold at less than fair value. The determination so made by the Commission shall be returned to this court within a period of sixty (60) days from the date of entry of this order.

At such time as may be deemed appropriate by the Commission and prior to the making of its final determination, all respective parties shall be permitted to be heard by the entire Commission and to submit such additional information as may be relevant and material.

Time for the submission of supplemental briefs on review, if desired by respective counsel, will be fixed by the court upon the expiration of the order relating to the stay of proceedings herein.

Upon motion by the plaintiffs, subsequent to the Commission’s determination on remand but prior to submission of any briefs or argument on review, this court will again consider plaintiffs’ need for access to the confidential documents presently included in the protective order of this court, and it is further

Ordered that all proceedings in the above action concerning judicial review of the final determination of the International Trade Commission, accordingly, be and are hereby stayed for a period of sixty (60) days in order to allow the Commission to make its determination on remand, and it is further

Ordered that defendant’s response to plaintiffs’ motion regarding the final determination of the Department of Commerce, International Trade Administration, shall be filed on or before fifteen (15) days from and after the date of this order.  