Floral Trade Council of Davis, Cal. v. US, Court No. 88-06-00398.

• Citation: 692 F. Supp. 1387
• Decision Date: 30 August 1988
• Docket Number: Court No. 88-06-00398.
• Parties: FLORAL TRADE COUNCIL OF DAVIS, CALIFORNIA, Plaintiff, v. The UNITED STATES, Defendant, and Asociacion Colombiana De Exportadores De Flores, Association of Floral Importers of Florida, and CFX, Inc., Defendant-Intervenors.
• Court: U.S. Court of International Trade

692 F. Supp. 1387

FLORAL TRADE COUNCIL OF DAVIS, CALIFORNIA, Plaintiff, v. The UNITED STATES, Defendant and Asociacion Colombiana De Exportadores De Flores, Association of Floral Importers of Florida, and CFX, Inc., Defendant-Intervenors.

Court No. 88-06-00398.

United States Court of International Trade.

August 30, 1988.

Stewart & Stewart, Charles A. St. Charles, James R. Cannon, Jr. (Eugene L. Stewart, Terence P. Stewart), Washington, D.C., for plaintiff.

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

Arnold & Porter (Patrick F.J. Macrory, Daniel C. Esty), Washington, D.C., for defendant-intervenors.

OPINION

RESTANI, Judge:

This matter is before the court on plaintiff's rule 56.1 motion for judgment upon the agency record. Floral Trade Council challenges the determination of the International Trade Administration of the Department of Commerce (ITA) not to commence an administrative review of 24 named importers and consignment brokers or, in the alternative, of all Colombian producers and exporters of certain fresh cut flowers from Columbia. Because of requests for annual reviews by certain importers or producers and because of requests by this plaintiff, regarding certain producers, imports of 35 Colombian producers or exporters will be reviewed. Under ITA procedures approximately 200 other producers or exporters are to be assessed antidumping duties based upon the original order, unless they were excluded from its coverage. See 19 C.F.R. § 353.53a(d) (1987).

The question the parties have put before the court is whether Commerce has acted in a manner consistent with 19 U.S.C. § 1675(a) (1982 & Supp. IV 1986), section 751 of the Trade Agreement Act of 1930, as amended, which provides for annual reviews of the antidumping orders upon request, in promulgating its regulations implementing this statute and in applying those regulations. 19 C.F.R. § 353.53a(a)(1) requires a domestic party to specify the manufacturers, producers and exporters it wishes investigated pursuant to the annual review and to state the reasons therefore.¹ In this case, plaintiff Floral Trade Council did request an annual review of certain exporters and producers; it alleged, however, that certain low cost sales were being made by some importers and it asked ITA to investigate the importers and to determine the identity of the suppliers of those importers. Thus, it did not specify by name all of the producers or exporters which it wished investigated, in order that any below fair value sales being made to particular importers would be counteracted. Subsequent to the denial of its request, Floral Trade Council asked for reconsideration and indicated that if Commerce could not determine the source of the less than fair value imports by investigating the 24 importers that concerned Floral Trade Council, then it should investigate all nonexcluded Colombian flower growers.

Intervenor argues that the request for 751 review made by Floral Trade Council did not specifically ask for a review of all producers or exporters, and that it could not cure deficiencies in its request with its later clarifying letter. This was not the view expressed by defendant. It was silent on this point. ITA itself never addressed directly what kind of clarifications are acceptable. ITA has never stated that it will not accept any clarifications of requests which may be interpreted in more than one way nor has its counsel made such a statement. Furthermore, ITA has not stated that exporters and producers cannot be specified other than by name.²

Defendant's counsel argues that plaintiff failed to demonstrate it had acted with due diligence to obtain the suppliers' names. ITA did not say that it had come to that conclusion nor does its regulation give any hint that due diligence is the standard for acceptance of a request such as plaintiff's. Furthermore, defendant states it cannot identify the suppliers and it argues that supplier information in customs documentation is confidential and not available either for ITA's or plaintiff's use in these cases. Thus, it seems lack of due diligence is not the real issue here.

The first true issue is whether plaintiff may simply name importers. The answer is "no." The regulation requires specification of exporters or producers. Producers and exporters are the focus of ITA unfair trade cases. It is reasonable for ITA to require by regulation that a domestic party name the producers...