Asociacion Colombiana de Exportadores v. US
| Citation | 704 F. Supp. 1114,13 CIT 13 |
| Decision Date | 06 January 1989 |
| Docket Number | Court No. 87-04-00622. |
| Parties | The ASOCIACION COLOMBIANA de EXPORTADORES de FLORES, et al., Plaintiffs, v. The UNITED STATES, et al., Defendants. |
| Court | U.S. Court of International Trade |
Heron, Burchette, Ruckert & Rothwell, Thomas A. Rothwell, Jr., James M. Lyons, Joseph A. Vicario, Jr., Washington, D.C., and Alfred G. Scholle, for Asociacion Colombiana de Exportadores de Flores.
John R. Bolton, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Washington, D.C., Jeanne E. Davidson, Civ. Div., U.S. Dept. of Justice, Anne W. White, Office of the Chief Counsel, for Import Admin., U.S. Dept. of Commerce for the U.S.
Stewart & Stewart, Terence P. Stewart and James R. Cannon, Jr., Washington, D.C., for Floral Trade Council of Davis, California.
This consolidated case is before the court on cross-motions for summary judgment based on the agency record. Both the foreign producers and the domestic industry challenge the final affirmative antidumping determination of the International Trade Administration (ITA) in Certain Fresh Cut Flowers from Colombia, 52 Fed.Reg. 6842 (1987), as amended, 52 Fed.Reg. 8492 (1987).1 The parties have managed to reduce the issues in this case to approximately two dozen. For the sake of brevity and because the standards of review and definitions of applicable statutory terms are well known, they will not be repeated here.2 The court will begin by addressing the challenges of the domestic industry party, the Floral Trade Council of Davis, California (FTC or Petitioner).
FTC's most far-reaching challenge is to ITA's averaging of United States prices on a monthly basis. The court has approved ITA's adoption of this averaging methodology as to related flower investigations. There are no facts of record here which would alter that conclusion. See Floral Trade Council of Davis, California v. United States, 12 CIT ___, 704 F.Supp. 233 (1988) ().
FTC asserts that ITA did not verify certain information provided by the Colombian producer known as Timana, and therefore, ITA may not rely on data submitted by Timana. See 19 U.S.C. § 1677e(a) (1982 & Supp. IV 1986 which (requiring verification of data relied on by the agency and permitting use of "best information available" in the absence of such verifiable data). Specifically, FTC objects to Timana's claim that its sales for export to the United States were at certain prices, while various invoices and export licenses revealed lower U.S. prices. ITA determined, by reference to bank deposit records and accounting information obtained from Timana, that Timana's U.S. prices were as claimed by Timana.
ITA is not required to accept information contained in invoices or export licenses at face value if ITA determines, based on other evidence of record, that a different price was paid. FTC claims that the chain of evidence demonstrating the higher U.S. prices was not sufficiently linked. The court finds ITA could reasonably come to the opposite conclusion based on the data obtained by ITA, in conjunction with the plausible explanation presented by Timana as to the why the price discrepancy occurred.3 The court finds, therefore, that Timana's U.S. price response was adequately verified, and that there was no failure of verification requiring use of other information.
FTC also objects to ITA's lack of verification of sales for export to the United States made by Caribbean Flowers, a sales arm of the producer Floramerica.4 Caribbean Flowers sold flowers produced by independent growers. ITA stated that the independent producers knew that the sales made through Caribbean were for export and merely used Caribbean as a freight forwarder. If this were the situation, the producers would have been proper respondents, assuming they had been included in the sample of producers which ITA was investigating, which they were not. See, infra, section II B. at 13. ITA did, however, verify Floramerica's reported volume of U.S. sales. FTC's statement that Floramerica could have hidden less than fair value (LTFV) sales by improperly denominating such sales "Caribbean Flower Sales" is mere speculation. Speculation is not support for a finding of failure to verify.
ITA calculated foreign market value by using certain producers' or sellers' cost of production as constructed value where there were insufficient above cost home market or third country sales of export quality flowers. See 19 U.S.C. § 1677b(a)(2) and (e) (1982 & Supp. IV 1986). Apparently this situation existed with regard to all flowers at Timana and Uniflor. 52 Fed.Reg. at 6844, 6848 (comment 36). An investigation as to whether sales of standard carnations on which foreign market value might be based were below cost of production and thus unusable was conducted as to La Pampa, among others. See 19 U.S.C. § 1677b(b) (1982); 52 Fed.Reg. at 6844. La Pampa's sales of standard carnations were found to be above cost of production. Id.
Once again, FTC alleges Timana failed verification, and that all of Timana's data must be rejected. The court finds that FTC has not demonstrated that ITA abused its discretion in using Timana's cost data, where it was available. Defects in data which are minimal do not result in failure of verification requiring use of best information available in place of all of the respondent's data. In this particular case the industry, as a general practice, does not maintain data of the type sought by ITA, thus ITA could properly use estimates as to the limited data which was unavailable.
Based on estimates, respondents were allowed a credit against cost of production for the value of substandard merchandise which was sold in the local market. The reason for selection of the particular estimates of the value of sales of substandard or "cull" merchandise for La Pampa and Timana, however, was not clearly explained, even in supplemental briefing.5 Both Timana and La Pampa claimed little cull value, yet ITA used estimates for Timana and La Pampa which were quite high in comparison with the rates apparently assigned to some firms. In its determination, ITA asserts that it used an average of verified data if a substantially complying respondent did not provide specific data for a certain category. 52 Fed.Reg. at 6845 (comment 2). As to Timana, rather than using an average of the cull values attributed to other firms, ITA used a favorable rate "in line" with that of a specific company. In its supplemental brief, ITA has not explained why it did not do what is described in the determination. Respondents lacking data should not be preferred over those fully...
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