US Opposes Intervention of New Party in Case Challenging 27-Year-Old Investigation

The motion is both untimely and defective, the U.S. said.

The case involves a 1996 investigation that was repeatedly put on hold due to various suspension deals between the U.S. and China. In the investigation's final determination, finally released in October, the Commerce Department assigned four tomato exporters an adverse facts available margin of 273.43% because it couldn’t track them down or they had gone out of business (see 2410230045).

Exporter NS Brands sought to intervene in the suit more than four-and-a-half years after the deadline for seeking intervention passed. The case began in 2019, but the Court of International Trade ruled in April that Commerce must use the same respondents and review period it originally selected in 1996, not look for a refresh (see 2404170046).

NS Brands, or NatureSweet, asked in 2019 to be named as a mandatory or voluntary respondent in the investigation, seeking a separate rate. When Commerce filed its draft remand redetermination in September, the exporter asked in comments that the department either initiate a changed circumstances review or a new shipper review for it. Commerce declined.

Now it is moving to join the case “nearly five years after the complaints were filed, and after full briefing on the merits and completion of the remand ordered by the Court,” the U.S. said.

But, first, NS Brands’ motion is defective because it doesn’t identify the issues the exporter seeks to raise by intervening, violating Rule 52(c)(2) of the Federal Rules of Civil Procedure, it said. It called it “unclear” what the exporter wants to litigate.

NS Brands also failed to file a case brief during the underlying investigation or commence an action within a month of Commerce’s final determination, so CIT lacks jurisdiction and any argument as to the investigation NS Brands seeks to make is waived, it said.

No other party had any issue with the draft redetermination, it noted.

“NatureSweet cannot establish piggyback standing as a plaintiff-intervenor, nor circumvent 19 U.S.C. 1516a(a)(2), because it seeks relief that no other plaintiff seeks at this advanced stage of litigation,” it said.

Finally, it said that the exporter had failed to establish good cause.

“At that time, by its own admission, NatureSweet conducted ‘due diligence’ and made a business judgment that its ‘interests could be represented by’ other litigating parties, so there was no mistake, inadvertence, surprise, or excusable neglect in failing to file a timely motion to intervene,” it said.