Roses Inc. v. United States, Court No. 81-7-00857.
| Decision Date | 28 April 1982 |
| Docket Number | Court No. 81-7-00857. |
| Citation | 538 F. Supp. 418 |
| Parties | ROSES INCORPORATED, Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
Eugene L. Stewart, Washington, D. C. (Eugene L. Stewart and Paul Jameson, Washington, D. C., on the briefs), for plaintiff.
J. Paul McGrath, Asst. Atty. Gen., Washington, D. C., David M. Cohen, Director, Commercial Litigation Branch, New York City (Sheila N. Ziff, New York City, on the brief), for defendant.
This case involves an antidumping petition submitted to the Department of Commerce International Trade Administration (hereinafter ITA) by plaintiff, an association of domestic rose growers, alleging that fresh cut roses from Colombia are being sold in the United States at less than fair value, thereby injuring a domestic industry. The petition, filed on June 4, 1981, pursuant to section 732(b)(1) of the Tariff Act of of 1930, as amended by the Trade Agreements Act of 1979, 19 U.S.C. § 1673a(b)(1) (hereinafter the Act), was accompanied by a confidential study of the rose growing industry in Colombia and also cited data from the U. S. Department of Commerce, Bureau of the Census to support the allegations of the petition.
The ITA then had 20 days after the date of the filing of the petition to determine whether the petition alleged the elements necessary for the imposition of a duty under section 731 of the Tariff Act of 1930, as amended, and contained information reasonably available to the petitioner supporting the allegations. During this 20-day period the ITA notified plaintiff's attorney, telephonically and by letter, that the petition was defective, suggested that plaintiff supplement the petition to correct the omissions and stated that otherwise the petition would be dismissed. The plaintiff filed additional data on June 19, 1981.
In the interim, the Asociacion Colombiana De Exportadores De Flores (Asocolflores), an association of Colombian rose growers, learned of the filing of the petition, retained counsel and advised the Department of Commerce (Commerce) that it was seeking disclosure of plaintiff's confidential study under the Freedom of Information Act, as amended (5 U.S.C. § 552). Additionally, Commerce received letters from the Colombian Government through the Colombian Embassy in Washington, D. C. and from Asocolflores which contained data different from that submitted by plaintiff, particularly that only 18 workers per hectare of roses were employed in rose growing in Colombia rather than 30, as alleged by plaintiff, and that the bloom rate per rose bush was 1.8 per month rather than 1.29, as alleged by plaintiff. On June 22, 1981 the ITA held an ex parte meeting with the Economic Minister of the Colombian Embassy, counsel for Asocolflores and others, at which the petition and its alleged insufficiencies were discussed. Whether plaintiff was advised of this meeting by the ITA and elected not to attend cannot be ascertained from the administrative record. There is also a record of a telex from the Fund for the Promotion of Exports (Proexpo) an official agency of the Colombian Government, to the ITA concerning the petition, but it is the ITA's position that the telex was rejected and returned (and for this reason not included in the administrative record). The contents of this telex are not known.
On June 24, 1981 counsel for plaintiff was notified by the ITA to either withdraw the petition by the next day or it would be dismissed. Plaintiff was also informed that it could submit another petition if it chose to do so. Plaintiff did not withdraw its petition and on June 25, 1981 the ITA notified plaintiff that it was dismissed, with proper notice of the dismissal being published in the Federal Register on June 30, 1981 46 Fed.Reg. 33575 (1981).
Plaintiff filed the present action on July 13, 1981 contesting the propriety of the ITA's decision to dismiss the petition, thereby terminating the antidumping proceeding. It seeks a determination that the ITA's decision to dismiss the petition was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law in that the ITA exceeded its statutory authority in going beyond the petition and supporting data in determining that there was no dumping of roses from Colombia, and that it solicited, accepted and considered information from the Colombian rose growers and from the Colombian Government.
It is the ITA's position that the petition, together with the supporting data submitted by plaintiff, on its face, does not warrant an investigation. It determined that the confidential study supporting the petition contains conflicting data, particularly with reference to the United States selling price and that, taking the figures established by plaintiff, it can be determined that roses from Colombia were not being sold at less than fair value during the time alleged in the petition.
The congressional scheme for the imposition of antidumping duties to deter the unfair competition of foreign merchandise with that manufactured in the United States encompasses several stages which are easily differentiated and the responsibility for which devolves to various agencies.
At the preinvestigatory stage, the interested party which is seeking relief for a domestic industry files a petition and supporting data with the administrating authority. If the domestic industry or interested party files a petition with the administrating authority which alleges the elements necessary for the imposition of dumping duties, and which is accompanied by data reasonably available to the petitioner supporting the allegations in the petition, an antidumping proceeding must be commenced by virtue of section 732 of the Act,1 which uses the mandatory "shall" rather than the discretionary "may."
The legislative history of the Act makes it clear that petitions which allege the elements required by the statute and are supported by data reasonably...
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U.S. v. Roses Inc.
...illegality, but disagree as to the remedy selected. We remand to the CIT for further proceedings in conformity with this opinion, 538 F.Supp. 418. I--History of the Roses Incorporated is a trade association of domestic rose growers and is accepted as having standing to petition, as it has, ......