Queen's Flowers de Colombia v. U.S., Slip Op. 96-152.

• Decision Date: 30 August 1996
• Docket Number: Slip Op. 96-152.,Court No. 96-08-01921.
• Citation: 947 F.Supp. 503
• Parties: QUEEN'S FLOWERS de COLOMBIA, et al., Plaintiffs, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

947 F.Supp. 503

QUEEN'S FLOWERS de COLOMBIA, et al., Plaintiffs, v. UNITED STATES, Defendant.

Slip Op. 96-152.

Court No. 96-08-01921.

United States Court of International Trade.

August 30, 1996.

Arnold & Porter (Michael T. Shor, William L. Busis), Washington, DC, for plaintiffs.

Frank W. Hunger, Assistant Attorney General of the United States; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice; Velta Melnbrencis, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice; Of Counsel, Lucius B. Lau, Office of the Chief Counsel for Import Administration, United States Department of Commerce, Washington, DC, for U.S.

MEMORANDUM AND ORDER ON PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION

POGUE, Judge:

This matter is before the court on the motion of plaintiffs, 20 individual privately-held producers and exporters of fresh cut flowers from Colombia, and three related importers in the United States, for a preliminary injunction to enjoin liquidation of entries¹ and to prevent collection of antidumping duty deposits. The deposits were set in a United States Department of Commerce ("Commerce") final determination, which plaintiffs contend is illegal. See Certain Fresh Cut Flowers from Colombia, 61 Fed. Reg. 42833 (Aug. 19, 1996) (final results admin. reviews).

The 20 producers/exporters consist of the following Colombian companies: (1) Queen's Flowers de Colombia Ltda., (2) M.G. Consultores Ltda., (3) Agroindustrial del RioFrio Ltda., (4) Cultivos Generales Ltda., (5) Floranova Ltda., (6) Flores Atlas Ltda., (7) Flores Calima S.A., (8) Flores de Bojaca Ltda., (9) Flores del Halo Ltda., (10) Flores el Aljibe S.A., (11) Flores el Cacique Ltda., (12) Flores Canelon Ltda., (13) Flores el Cipres Ltda., (14) Flores el Roble, (15) Flores el Tandil Ltda., (16) Flores Jayvana Ltda., (17) Flores la Mana S.A., (18) Flores la Valvanera Ltda., (19) Jardines de Chia Ltda., and (20) Jardines Fredonia Ltda.

The three U.S. importers are: (1) Queen's Flowers Corp., based in Miami, Florida, (2) Atlas Flowers, Inc. d/b/a Golden Flowers, located in Miami, Florida, and (3) Florexpo, located in Carlsbad, California.

In its Final Results for the consolidated fifth, sixth and seventh administrative reviews of the antidumping order on Certain Fresh-Cut Flowers From Colombia, 61 Fed. Reg. 42833, the Department of Commerce International Trade Administration ("ITA") determined that all 20 flower producing companies were related, and collapsed them into a single entity called the "Queen's Flowers Group." ITA did not calculate dumping margins for this group based on data submitted by the companies. Instead, ITA applied a best information available rate ("BIA") of 76.60 percent to all 20 companies for each of the three one-year periods of review, and for future cash deposits. The margins found for other Colombian producers were in the range of 0 to 5 percent.

BACKGROUND

Following investigations by the Department of Commerce and the U.S. International Trade Commission, an antidumping duty order was entered against Certain Fresh Cut Flowers From Colombia in 1987. That antidumping duty order covered standard carnations miniature carnations, standard chrysanthemums, and pompom chrysanthemums. See Certain Fresh Cut Flowers From Colombia, 52 Fed.Reg. 6492 (Mar. 18, 1987) (amend. final determination).

Prior to the August 19, 1996 publication of the final results in the consolidated fifth, sixth, and seventh administrative reviews of the Fresh Cut Flowers From Colombia antidumping duty order, covering entries made between March 1, 1991 and February 28, 1994, plaintiffs' exports to the United States were subject to antidumping duty deposit rates ranging between 0% and 3.13%.

ITA initiated the fifth review (covering entries between March 1, 1991 and February 29, 1992) on May 21, 1992. ITA initiated the sixth review (covering entries between March 1, 1993 and February 28, 1994) on May 2, 1994. It sent out separate Section A questionnaires (requesting corporate structure information and aggregate sales data) for the fifth and sixth reviews on November 9, 1993. ITA initiated the seventh review on May 2, 1994, and sent out Section A questionnaires on April 22, 1994. ITA later consolidated the fifth, sixth, and seventh administrative reviews (covering entries between March 1, 1991 and February 28, 1994). It issued Sections C and D of its questionnaire, requiring all cost and U.S. sales data, for all three review periods. These responses were filed in July and August of 1994.

Nine of the twenty plaintiff producers were included within Commerce's Notices of Initiation for the fifth, sixth, or seventh administrative reviews. These nine companies were: (1) Queen's Flowers de Colombia Ltda., (2) Jardines de Chia Ltda., (3) Jardines Fredonia Ltda., (4) Agroindustria del RioFrio Ltda., (5) Flores el CaneIon Ltda., (6) Flores del Halo Ltda., (7) Flores la Valvanera Ltda., (8) M.G. Consultores Ltda., and (9) Cultivos Generales Ltda. (previously Flores Generales). Cultivos Generales and Fredonia, however, certified that they did not produce or export subject merchandise to the United States during the periods of review. No review was requested for the remaining 11 companies, and thus none were included in any of ITA's three notices of initiation.

In the preliminary results issued on June 8, 1995, ITA determined to apply first-tier best information available (BIA) rates to eight companies. Although all the companies provided responses to ITA's initial questionnaire and supplemental questionnaires, ITA preliminarily determined that these respondents had impeded its investigation, and ITA thus applied an uncooperative, first-tier BIA rate. This rate, equal to the highest rate ever determined for any producer in any review, was 75.92 percent for the fifth administrative review period, and 83.61 percent for the sixth and seventh administrative review periods. Certain Fresh Cut Flowers From Colombia, 60 Fed.Reg. 30270, 30272-73 (June 8, 1995) (prelim. results admin. review).

Previously, ITA had delivered a November 17, 1994 decision memoranda to the eight companies explaining why the companies were collapsed, and a December 5, 1994 analysis memorandum itemizing deficiencies in their questionnaire responses that according to ITA justified use of BIA.

On May 26, 1995, ITA issued Section A questionnaires covering all three review periods to the 12 producer plaintiffs not covered in the preliminary determination. It issued supplemental questionnaires to these companies on July 21, 1995. Timely responses were provided by all companies on June 13, 1995 and July 28, 1995, respectively. On August 3, 1995 the ITA issued a decision memoranda analyzing the relatedness of the original eight parties.² That memoranda determined that the companies were related. In briefs submitted on August 11, 1995 and August 23, 1995, and in a hearing held on September 8, 1995, plaintiffs challenged ITA's decision to apply BIA based on plaintiffs' failure to provide related party information. Subsequently, on February 1, 1996, the ITA issued a memoranda analyzing the relatedness of the twelve other companies³ to the earlier eight. That memoranda determined that all twenty companies were related. Through a written submission made on July 26, 1995, the companies presented information challenging the ITA's list of deficiencies. The companies also contended that ITA, in asserting that the companies were related and should be collapsed, never performed the required statutory analysis to determine whether the companies were related parties.

On June 28, 1996, the ITA issued a memoranda in response to comments raised about the use of BIA for the Queen's Flowers Group. This memoranda focused in large measure on the failure of the companies to provide requested related party information in their responses to questionnaires. The Final Results state, "... not all of the companies of this group responded to our questionnaire. Further, there exist serious deficiencies in the responses submitted by this group." 61 Fed.Reg. at 42836.

The plaintiffs, Queen's Flowers Group, et. al., argue that the twenty companies were unlawfully collapsed, and that BIA was applied to the companies unlawfully because the companies gave complete responses to the sections of the questionnaires devoted to related party information.

DISCUSSION

To receive the requested injunctive relief, plaintiffs must show, "(1) that [they] will be immediately and irreparably injured; (2) that there is a likelihood of success on the merits; (3) that the public interest would be better served by the relief requested; and (4) that the balance of hardship on all the parties favors the [plaintiffs]." Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (1983); see also American Air Parcel Forwarding Co. v. United States, 1 CIT 293, 297-300, 515 F.Supp. 47 (1981).

Preliminarily, the defendant challenges the power of the Court of International Trade to grant injunctive relief reinstating the predecessor cash deposit rate to prevent irreparable harm that might result from an erroneous deposit rate. The court has the power to grant the requested injunctive relief. See 28 U.S.C. § 2643(c)(1); see also 28 U.S.C. § 1585 ("The Court of International Trade shall possess all the powers in law and equity of, or as conferred by statute upon, a district court of the United States."); see also Krupp Stahl AG v. United States, 553 F.Supp. 394, 396 (1982), Companhia Brasileira Carbureto de Calcio v. United States, slip op. 94-48, 1994 WL 91951 (1994). To obtain such relief, however, petitioner has an extremely heavy burden, particularly on the question of injury. It is only in the rarest of instances that this form of injunctive relief will be granted. Petitioner has satisfied the burden for eight of the twenty companies.

On the question of irreparable...