704 F.Supp. 1068 (CIT. 1988), 87-04-00623, Asociacion Colombiana de Exportadores de Flores v. United States
|Docket Nº:||Court No. 87-04-00623.|
|Citation:||704 F.Supp. 1068|
|Party Name:||The ASOCIACION COLOMBIANA de EXPORTADORES de FLORES, et al., Plaintiffs, v. The UNITED STATES, et al., Defendants.|
|Case Date:||December 27, 1988|
|Court:||Court of International Trade|
Heron, Burchette, Ruckert & Rothwell (Thomas A. Rothwell, Jr., James M. Lyons and William E. Donnelly), for Asociacion Colombiana de Exportadores de Flores and American Flower Corp. (Joseph A. Vicario, Jr. and Alfred G. Scholle), for Asociacion Colombiana de Exportadores de Flores.
Stewart & Stewart (Eugene L. Stewart, Terence P. Stewart, James R. Cannon, Jr. and Jimmie V. Reyna), for Floral Trade Council of Davis, Cal.
Lyn M. Schlitt, Gen. Counsel, James A. Toupin, Asst. Gen. Counsel and (Judith M. Czako), U.S. Intern. Trade Com'n, for defendant U.S.
Kaplan, Russin & Vecchi (Kathleen F. Patterson and Dennis James, Jr.), for Government of Israel and Agrexco Agricultural Export Co.
Gustav Springer, for Bedrijfschap Voor de Groothandel, etc. and Vereniging Van Bloemenveiling, etc.
Prather, Seeger, Doolittle & Farmer (Edwin H. Seeger), for Flores Esmeralda, S.R.L.
Duncan, Allen and Talmage (John P. Williams and Leslie A. Glick), for Government of Kenya.
This case is before the court following the International Trade Commission's (ITC) remand determination in Certain Fresh Cut Flowers from Canada, Chile, Colombia, Costa Rica, Ecuador, Israel, Kenya,
Mexico, The Netherlands, and Peru, Inv. Nos. 303-TA-18, 701-TA-275 through 278 and 731-TA-327 through 333 (August 1988) (Remand Determination). At this point in the proceedings, the only live issues involve negative threat determinations concerning miniature carnations from various countries. 1 The background of this consolidated case, involving challenges to certain of ITC's affirmative and negative determinations in Certain Fresh Cut Flowers from Canada, Chile, Colombia, Costa Rica, Ecuador, Israel and The Netherlands, USITC Pub.1956, Inv. Nos. 701-TA-275 through 278 and 731-TA-327 through 331 (March 1987) (Flowers I) and in Certain Fresh Cut Flowers from Peru, Kenya and Mexico, USITC Pub.1968, Inv. Nos. 303-TA-18 and 731-TA-332, 333 (April 1987) (Flowers II), is set forth in Asociacion Colombiana de Exportadores de Flores v. United States, 12 CIT 634, 693 F.Supp. 1165 (1988) (Asocolflores). In that opinion, the court remanded this matter for reexamination of the ITC's multiple domestic industry finding, also known as the like product determination, as well as for reexamination of the question of whether certain data should be analyzed on a cumulative basis for purposes of assessing threat of injury by reason of imports of miniature carnations from various countries. Following remand, the parties abandoned their objections to the finding of seven domestic flower industries, on the part of three commissioners, and of a single domestic flower industry, on the part of two commissioners. 2
Thus, the only objection to the remand determination, which addressed both like product and cumulation, is the objection of Floral Trade Council of Davis (FTC), petitioner before ITC and a plaintiff and defendant intervenor here, to ITC's failure to cumulate for threat analysis purposes. FTC adheres to its earlier asserted claim of lack of substantial evidence supporting certain negative determinations regarding miniature carnations. These objections will be addressed separately.
I. Cumulative Analysis of Certain Data Regarding Threat of Injury by Reason of Unfairly Traded Miniature Carnations
As the court found in its earlier opinion herein, cumulative analysis of the volume and price effects of unfairly traded imports from all countries subject to investigation is not mandatory for threat of injury determination purposes. See Asocolflores at 1171-1172. Nonetheless, cumulative analysis may be applied in appropriate threat of injury investigations. It is error to fail to cumulate solely because of a general conclusion that any cumulation for threat analysis purposes is speculative. Such a view would, in effect, rule out cumulative analysis for threat purposes in all cases. Therefore, as the court held in its earlier opinion, ITC should consider whether cumulation would be appropriate under the facts of the particular case at hand. Implicitly, the court also required ITC to state the reason for its conclusion.
FTC states that on remand ITC did not follow the court's ruling, but rather applied a blanket rule under the guise of exercising discretion, and further that ITC applied an improper threshold for cumulation in the
nature of an improper "contributing effects" test. Cf. Fundicao Tupy S.A. v. United States, 12 CIT 6, 678 F.Supp. 898, 901 (1988); USX Corp. v. United States, 12 CIT 205, 682 F.Supp. 60, 73 (1988) (both finding a test for cumulation which required each country's imports to have a causal link to material injury improper for material injury analysis).
As to the two negative opinions based on the existence of one all cut flower industry, 3 one commissioner found the single cut flower industry in good condition and not sufficiently weakened to be threatened with injury from any source. The other commissioner found enough of a possibility of threat by reason of imports from Colombia and The Netherlands to discuss the issue, but found no likelihood for significant change as to imports from those countries. Thus, together or separately, such imports would pose no threat of material injury to the currently uninjured industry. It is clear from the opinion that this commissioner also found the U.S. industry in such a healthy condition, and the effect of imports...
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