CIT Lets Tomato Exporters Intervene in Suit on 1996 AD Investigation
The Court of International Trade allowed tomato exporters NS Brands and Naturesweet Invernaderos to intervene in a case challenging the 1996 antidumping duty investigation on Mexican tomatoes, despite the request for intervention coming five years too late. Judge Jennifer Choe-Groves held that the exporters, collectively referred to as NatureSweet, showed good cause for intervention, due to the unorthodox nature of the appeal, and properly articulated the basis for its intervention.
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
The investigation was repeatedly suspended after its inception due to various suspension deals between the U.S. and Mexico. When the most recent suspension deal ended in 2019, the Commerce Department tried to restart the AD proceeding with new respondents and information, but the trade court rejected this move, requiring the agency to investigate the 1995-96 tomato market (see 2404170046).
As a result, NatureSweet sought to intervene in the suit on the investigation, claiming to be an "interested party" because it sought individual examination before Commerce during the remand proceeding.
The U.S. and petitioner The Florida Tomato Exchange opposed this bid on three grounds, first claiming that the exporter didn't "identify the issues sought to be raised through intervention." The government said it's unclear if NatureSweet wants to litigate the issues it raised during the remand or the underlying investigation. NatureSweet said that during the 2019 investigation, it requested an individual examination, which was denied. On remand, the company said the agency should conduct a changed circumstances review or a new shipper review to see if the exporter is entitled to an individual AD rate.
Commerce said neither a CCR nor a new shipper review is possible because no AD order has been issued. In moving to intervene, NatureSweet said the "circumstances that now exist regarding NatureSweet providing information on the record for the remand proceeding and its information being used in Commerce's remand redetermination did not exist during the initial thirty-day period for intervention."
Choe-Groves held that "NatureSweet’s Motion sufficiently articulates its reasons for seeking intervention" when read "in its totality."
The U.S. next said NatureSweet's claims have been waived because the company didn't file an administrative brief during remand. The court noted that while the company didn't file a case brief, it submitted comments to Commerce, which the agency "expressly responded to," showing that it had a chance to consider the arguments administratively. As a result, the court applied an exception to administrative exhaustion.
Last, the government and the petitioner said NatureSweet failed to show good cause for the five-year delay in seeking intervention. Choe-Groves again sided with the exporter, ruling that good cause for the delay was created due to the court's order requiring investigation of the 1995-96 market. In so ruling, the court "drastically changed the landscape of this litigation," the judge said.
"Despite all appropriate due diligence, it would have been nearly impossible in 2019 for NatureSweet to anticipate the results of the Court’s 2024 remand in this unique case, and NatureSweet should not be penalized now for failing to anticipate in 2019 that it needed to intervene to participate in the 2024 court proceeding," the decision said.
(Bioparques de Occidente v. U.S., Slip Op. 24-130, CIT Consol. # 19-00204, dated 11/25/24; Judge: Jennifer Choe-Groves; Attorneys: Jeffrey Winton of Winton & Chapman for plaintiffs led by Bioparques de Occidente; Yujin McNamara of Akin for consolidated plaintiffs led by Confederacion de Asociaciones Agricolas del Estado de Sinaloa; Douglas Edelschick for defendant U.S. government; Robert Cassidy of Cassidy Levy for The Florida Tomato Exchange; Jessica DiPietro of ArentFox Schiff for plaintiff-intervenors NS Brands, Ltd. and Naturesweet Invernaderos)