Floral Trade Council of Davis, California v. US, Court No. 87-05-00687.

• Decision Date: 27 December 1988
• Docket Number: Court No. 87-05-00687.
• Citation: 704 F. Supp. 241
• Parties: FLORAL TRADE COUNCIL OF DAVIS, CALIFORNIA, Plaintiff, v. The UNITED STATES, Defendant, Florex, et al., Defendant-Intervenors.
• Court: U.S. Court of International Trade

704 F. Supp. 241

FLORAL TRADE COUNCIL OF DAVIS, CALIFORNIA, Plaintiff, v. The UNITED STATES, Defendant Florex, et al., Defendant-Intervenors.

Court No. 87-05-00687.

United States Court of International Trade.

December 27, 1988.

Stewart & Stewart (Eugene L. Stewart, Terence P. Stewart, James R. Cannon and Jimmie V. Reyna), Washington, D.C., for plaintiff.

John R. Bolton, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch (Elizabeth C. Seastrum), Civil Div., U.S. Dept. of Justice, Washington, D.C., for defendant;

(Duane W. Layton) Attorney-Advisor, Office of the Chief Counsel for Import Administration, U.S. Dept. of Commerce, for defendant.

Duncan, Allen and Mitchell (Leslie Alan Glick and John P. Williams), Washington, D.C., for defendant-intervenors.

OPINION

RESTANI, Judge:

Plaintiff Floral Trade Council of Davis (FTC) has moved for judgment on the agency record. It challenges the International Trade Administration's (ITA) final determination in Certain Fresh Cut Flowers from Mexico, 52 Fed.Reg. 6361 (1987). In particular, FTC, a trade association of domestic flower growers, challenges ITA's monthly averaging of United States Price data and ITA's failure to conduct a below cost of production investigation with regard to home market sales of the Mexican producer known as Floremor.

The court has found in a related case that averaging of United States price is appropriate for the simultaneous flower investigations initiated by petitioner FTC. ITA's reasoning is the same for both cases, as is the court's view of the ITA's determinations on this issue. For a full discussion of this issue see Floral Trade Council v. United States, 704 F.Supp. 233 (C.I.T.1988) (review of ITA final determination as to fresh cut flowers from Ecuador).

FTC's other challenge is similar to one which was also made in the Ecuadorian case, to which the reader also should refer on this issue. FTC's basic argument is that ITA has an obligation to sua sponte undertake below cost of production investigations whenever information in the record facially gives ITA reason to suspect such sales are occurring. 19 U.S.C. § 1677b(b) (1982) requires ITA to conduct such an investigation if it has "reasonable grounds to believe or suspect" sales are being made at less than the cost of production. The court's view is that whether ITA has reason to suspect below cost sales are being made relates not just to the data submitted to it but to the context in which that data exists. Thus, in Floral Trade Council v. United States, 698 F.Supp. 925 (C.I.T.1988) (review of ITA final determination as to fresh cut flowers from Costa Rica), the court found ITA did not err in failing to conduct a below cost of sales investigation even though the numerical data in the record when properly adjusted and examined with this issue in mind, could have given ITA reason to suspect below cost sales. The court viewed petitioner's failure to raise the issue at all in the administrative proceeding, even after ITA had given notice that no below cost investigation would occur and petitioner had viewed the data and discussed it in detail, as good reason for ITA not to perform such an investigation. This case is distinguishable from the Costa Rican case because in the case at hand FTC did raise the issue at the administrative level.¹ It did so, not at the time of...