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United States v. Roses Inc.

April 25, 1983

THE UNITED STATES, APPELLANT,
v.
ROSES INCORPORATED, APPELLEE



Nichols, Miller, and Smith, Circuit Judges. Jack R. Miller, Circuit Judge, dissenting in part.

Nichols

NICHOLS, Circuit Judge.

This is an appeal by the United States from an order of the Court of International Trade (CIT) requiring the Department of Commerce to initiate an antidumping investigation, despite its prior refusal to do so. We agree with the CIT that the administrative proceedings are tainted by serious 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 case

Roses Incorporated is a trade association of domestic rose growers and is accepted as having standing to petition, as it has, for assessment of antidumping duties against the importation of fresh cut roses from Columbia, South America. It filed its original petition with the Commerce Department on June 4, 1981, pursuant to 19 U.S.C. § 1673a(b)(1) (Supp. V 1981). That Department gave the matter immediate attention, being aware that by 19 U.S.C. § 1673a(c) it had but 20 days to decide what to do. It notified appellee's counsel that the petition was defective in its view, and he filed additional data on June 19, 1981. Meanwhile, an association of Columbian rose growers (Asocoflores) learned of the filing and advised the Commerce Department it was seeking disclosure of appellee's confidential data under the Freedom of Information Act, 5 U.S.C. § 552 (1976). Additionally, the Commerce Department received letters from the Columbian Embassy and from Asocoflores containing data that traversed appellee's in some respects. On June 22, 1981, the International Trade Administration (ITA or agency), the arm of Commerce responsible in the premises, conducted an ex parte meeting with the Economic Minister of the Columbian Embassy, counsel for Asocoflores and others. The petition was discussed and objections to it noted. A study by PROEXPO, a Columbian body, was discussed but not then filed. On June 24, 1981, the ITA notified counsel for appellee to withdraw the petition the next day or it would be dismissed, but he could submit another petition if he wished. On June 25, 1981, it was dismissed, with proper notice in the Federal Register. The dismissal was on other grounds than those urged by outside objectors.

On July 13, 1981, appellee, instead of filing another petition, sued in the CIT. It prayed for a declaratory judgment that the agency negative determination was unlawful, an order to the agency to institute an investigation forthwith, and such other relief as the court might decree proper.

Under date of April 28, 1982, the CIT held that the ITA proceedings were illegal, on the ground that the Columbian government and exporters should not have been allowed to submit information or otherwise participate in evaluation of the petition. Upon "perusal" of the original petition of June 4, 1981, the court determined that it, with its supporting data, contained allegations making mandatory the commencement of the next or investigatory stage of an antidumping proceeding. Accordingly, the court ordered that the petition be reinstated and the investigation be commenced. This appeal by the government followed.

II -- Statutes Applicable

This case derives much of its interest from the relative novelty of the statutes to be construed.

The jurisdiction of the CIT to review the decision of the ITA not to investigate as aforesaid, derives from 19 U.S.C. § 1516a (Supp. V 1981), and from 28 U.S.C. § 1582 (Supp. V 1981). Its authority to act upon its conclusions, in an appropriate case by ordering institution of an antidumping investigation, does not seem to be challenged -- the issue being whether this is an appropriate case.

The manner of initiating an antidumping investigation, and the legal consequence of doing so, are completely recast in this legislation. The legal effect of a decision to conduct such an investigation is stated in 19 U.S.C. § 1673b, and does not include suspension of liquidation, except to a limited extent in stated "critical circumstances," until affirmative preliminary determinations are made as to a reasonable indication of injury to a domestic industry and a reasonable basis to suspect sales at less than fair value. These provisions were enacted as part of the Trade Agreements Act of 1979, Pub. L. No. 96-39, which repealed the former antidumping law.

In general, by § 1673a, the "administering authority" shall commence an investigation whenever it --

determines, from information available to it, that a formal investigation is warranted * * *.

or whenever an "interested party" --

files a petition with the administering authority, on behalf of an industry which alleges the elements necessary for the imposition of the duty imposed by section 1673 of this title, and which is accompanied by information reasonably available to the petitioner supporting these allegations. * * *

The administering authority "within 20 days after the date on which a petition is filed" shall --

(1) determine whether the petition alleges the elements necessary for the imposition of a duty under section 1673 of this title and contains information reasonably available to the petitioner supporting the allegations,

(2) if the determination is affirmative, commence an investigation * * *.

(3) if the determination is negative, dismiss the petition * * *.

Accordingly, an antidumping investigation must be commenced if the administering authority determines, sua sponte, that commencement is warranted, or if it determines that a petition, duly filed, alleges the elements necessary for relief supported by information reasonably available to the petitioner. Unlike previous practice, a petition may not be refused for filing on the grounds that the information contained is not sufficient to allege dumping. Rather, the petition must be accepted for filing and then the authority must determine within 20 days whether to initiate an investigation.

III -- OPINION

A

The first question we must decide is whether, as the CIT thought, the mere receipt of oral or written material from persons representing the anticipated targets of the investigation, or their diplomatic representatives, during the 20 days following the filing of the petition, taints a decision to dismiss with illegality even though the dismissal is based, as here, on other grounds than those urged by the said targets, at least ostensibly. One's possible first impulse to hold the error was no worse than harmless is replaced on study of the statutory scheme by an appreciation that the CIT judge was right in attaching to the transaction the significance that he did.

In the first place, he quotes some very telling legislative history, and we can do no better than to quote it also. It is a colloquy between Senator Ribicoff, Chairman of the Subcommittee on International Trade of the Committee on Finance and floor manager of the bill, and Senator Danforth, co-sponsor of the legislation, explaining the bill on the Senate floor. 125 Cong. Rec. 20172 (1979):

Mr. Danforth. Should not the administering authority, like the courts, look only to the four corners of the petition -- the pleading -- and the information filed supporting the allegations and not elsewhere?

Mr. Ribicoff. Definitely yes.

Mr. Danforth. Since, at this stage, it is not the intent of Congress to have ongoing an advocacy proceeding, petitions or information seeking to rebut the allegations should not be considered by the administering authority, is this not correct?

Mr. Ribicoff. That is correct. This is not to say, however, that the administering authority, like a court, may not take "judicial ...


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