Parties in Mexican Tomato Case Accuse Consolidated Plaintiff of Trying to 'Hijack' Litigation
Plaintiff tomato exporter Bioparques de Occidente, the U.S. and defendant-intervenor the Florida Tomato Exchange each supported Jan. 7 the Commerce Department’s redetermination on remand in a case involving a 27-year-old antidumping duty investigation after a consolidated plaintiff opposed it (see 2412040052) (Bioparques de Occidente v. United States, CIT Consol. # 19-00204).
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The parties accused defendant-intervener NatureSweet of attempting to “hijack” the ongoing litigation for its own ends.
In the redetermination, Commerce based its AD calculation on the information it had gathered from respondents in 1996, the year the investigation was initially launched. It did so after the Court of International Trade held that its attempt to select new respondents and solicit new information decades later was contrary to AD/CVD law (see 2404170046).
NatureSweet, an exporter that hadn’t yet existed in 1996, successfully sought to intervene in the litigation to argue its case for a separate rate (see 2411260021). It was the sole party to oppose the department’s redetermination upon remand, in which Commerce assigned four Mexican exporters an adverse facts available-based dumping margin of 273.43%, setting individual rates for the remaining three.
“All parties appear to agree that Commerce’s Redetermination fully implements the Court's Order of April 17, 2024” remanding the investigation to require use of the original respondents, Bioparques de Occidente said in its Jan. 7 filing.
Though NatureSweet had filed comments opposing the redetermination, those comments “explicitly admit" that they don't "object to Commerce’s Remand Redetermination as it responds to the Court’s holding,” the plaintiff said. NatureSweet’s concerns, it said, weren’t “properly before the Court in this appeal” -- instead, the exporter should file its own case.
Bioparques noted that the trade court doesn’t have the jurisdiction over NatureSweet’s claim anyway, because plaintiffs brought their complaint under 19 U.S.C. 1516a. That law doesn’t grant standing to cases involving denials of changed circumstances review requests by Commerce, it said.
And it said that the trade court fulfilling NatureSweet’s request “could seriously prejudice the Bioparques Group.”
“NatureSweet’s attempt to hijack this appeal to address an issue that was not presented by the Court’s April 17 Order, and over which the Court does not have jurisdiction in this appeal, should be rejected,” it said.
The U.S. agreed in its own brief that NatureSweet lacks standing because its claim doesn’t fall under section 1516a.
It also claimed the exporter “has not suffered any cognizable injury” because the all-others rate it was facing went down from 20.91% to 17.09% as a result of the remand redetermination. And it said that the exporter acknowledged the department wasn’t wrong; NatureSweet was only arguing that Commerce “erred" by complying with the remand order, it wrote.
Defendant-intervenor The Florida Tomato Exchange echoed the other two parties. It also argued NatureSweet wasn’t prejudiced by the remand redetermination because the exporter can still seek a new shipper review or a changed circumstances review.