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UNITED STATES ITC v. E. & J. GALLO WINERY

December 11, 1985

UNITED STATES INTERNATIONAL TRADE COMMISSION, Petitioner,
v.
E. & J. GALLO WINERY, Respondent



The opinion of the court was delivered by: HOGAN

 THOMAS F. HOGAN, District Judge.

 The United States International Trade Commission ("ITC") petitioned this Court on October 1, 1985, for a show cause hearing and an expedited order to enforce its September 17, 1985 subpoena directed to respondent, E. & J. Gallo Winery ("Gallo"). *fn1" ITC had issued the subpoena during the course of ITC's preliminary determinations in four countervailing and antidumping duties investigations. *fn2" The matter came before the Court on October 10, 1985 for an evaluation of the required scope of Gallo's compliance with said subpoena. After a thorough review of the substantial filings and authority provided to the Court by both ITC and Gallo, and a lengthy and detailed oral argument, the Court concluded that Gallo would be required to comply in toto with ITC's subpoena by the close of business on October 17, 1985. *fn3" This opinion sets forth in greater detail the rationale of the Court's bench ruling of October 10.

 Factual Background

 1984 Investigations

 On January 27, 1984, several of Gallo's competitors *fn4" filed petitions with ITC, pursuant to 19 U.S.C. §§ 1671a(b)(1) and 1673a(b)(1), alleging that imports of non-premium table wine from Italy and France were being subsidized and thereafter sold in the United States at less than fair value. Memorandum of Points and Authorities of E. & J. Gallo Winery in Opposition to Petition for Subpoena Enforcement (" Opp."), at 7. In response to these petitions, ITC initiated "countervailing duties" proceedings, which required in relevant parts as follows:

 
(a) General rule. If --
 
(1) . . . [ITC] determines that --
 
(A) a country under the Agreement [on Subsidies and Countervailing Measures], or
 
(B) a person who is a citizen or national of such a country, or a corporation, association, or other organization organized in such a country,
 
is providing, directly, or indirectly, a subsidy with respect to the manufacture, production, or exportation of a class or kind of merchandise imported into the United States, and
 
(2) . . . [ITC] determines that --
 
(A) an industry in the United States --
 
(i) is materially injured, or
 
(ii) is threatened with material injury . . . by reason of imports of that merchandise,
 
then there shall be imposed upon such merchandise a countervailing duty, in addition to any other duty imposed, equal to the amount of the net subsidy.

 19 U.S.C. § 1671 (1979). Concurrently, ITC initiated "antidumping duties" proceedings, which required in relevant parts as follows:

 
If --
 
(1) . . . [ITC] determines that a class or kind of foreign merchandise is being, or is likely to be, sold in the United States at less than fair value, and
 
(2) . . . [ITC] determines that
 
(i) is materially injured, or
 
(ii) is threatened with material injury . . .
 
by reason of imports of that merchandise,
 
then there shall be imposed upon such merchandise an antidumping duty, in addition to any other duty imposed, in an amount equal to the amount by which the foreign market value exceeds the United States price for the merchandise.

 19 U.S.C. § 1673 (1979).

 In effectuating its dual investigations, ITC began conducting "preliminary determination[s]" as mandated by 19 U.S.C. § 1671b(a) (countervailing duties) and § 1673b(a) (antidumping duties), which require ITC

 
within 45 days after the date on which a petition is filed . . . [to] make a determination, based upon the best information available to it at the time of the determination, of whether there is a reasonable indication that --
 
(1) an industry in the United States --
 
(A) is materially injured, or
 
(B) is threatened by ...

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