Slip Op. 24-45
UNITED STATES COURT OF INTERNATIONAL TRADE
BIOPARQUES DE OCCIDENTE, S.A. DE C.V., AGRICOLA LA PRIMAVERA, S.A. DE C.V., AND KALIROY FRESH LLC,
Plaintiffs,
CONFEDERACION DE ASOCIACIONES AGRICOLAS DEL ESTADO DE SINALOA, A.C., CONSEJO AGRICOLA DE BAJA CALIFORNIA, A.C., ASOCIACION MEXICANA DE HORTICULTURA PROTEGIDA, A.C., ASOCIACION DE PRODUCTORES DE Before: Jennifer Choe-Groves, Judge HORTALIZAS DEL YAQUI Y MAYO, AND SISTEMA Consol. Court No. 19-00204 PRODUCTO TOMATE,
Consolidated Plaintiffs,
v.
UNITED STATES,
Defendant,
and
THE FLORIDA TOMATO EXCHANGE,
Defendant-Intervenor. Consol. Court No. 19-00204 Page 2
OPINION AND ORDER
[Remanding the U.S. Department of Commerce’s resumed antidumping duty investigation of fresh tomatoes from Mexico.]
Dated: April 17, 2024
Jeffrey M. Winton, Michael J. Chapman, Amrietha Nellan, Jooyoun Jeong, Ruby Rodriguez, and Vi N. Mai, Winton & Chapman PLLC, of Washington, D.C., for Plaintiffs Bioparques de Occidente, S.A. de C.V., Agricola La Primavera, S.A. de C.V., and Kaliroy Fresh LLC.
Bernd G. Janzen, Devin S. Sikes, Paul S. Bettencourt, and Yujin K. McNamara, Akin, Gump, Strauss, Hauer & Feld, LLP, of Washington, D.C., for Consolidated Plaintiffs Confederacion de Asociaciones Agricolas del Estado de Sinaloa, A.C., Consejo Agricola de Baja California, A.C., Asociacion Mexicana de Horticultura Protegida, A.C., Asociacion de Productores de Hortalizas del Yaqui y Mayo, and Sistema Producto Tomate.
Douglas G. Edelschick, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., for Defendant United States. With him on the brief were Brian M. Boynton, Principal Deputy Assistant Attorney General, Patricia M. McCarthy, Director, and Franklin E. White, Jr., Assistant Director. Of counsel was Emma T. Hunter, Assistant Chief Counsel, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce.
Robert C. Cassidy, Jr., Charles S. Levy, Chase J. Dunn, James R. Cannon, Jr., Mary Jane Alves, Jonathan M. Zielinski, and Nicole Brunda, Cassidy Levy Kent (USA) LLP, of Washington, D.C., for Defendant-Intervenor The Florida Tomato Exchange.
Choe-Groves, Judge: This case involving imported fresh tomatoes from
Mexico spans 28 years. In summary, the U.S. Department of Commerce
(“Commerce”) initiated an investigation into whether fresh tomatoes from Mexico
were being sold in the United States at less than fair value. Commerce issued a Consol. Court No. 19-00204 Page 3
preliminary determination in 1996 that the Mexican tomatoes were being, or were
likely to be, sold in the U.S. at less than fair value.
Commerce and the Mexican tomato growers entered into a series of
agreements (in 1996, 2002, 2008, and 2013) to suspend the investigation for over
two decades. In May of 2019, Commerce withdrew from the 2013 suspension
agreement. Commerce and the Mexican tomato growers entered into a new
agreement to suspend the investigation in September 2019. In October 2019, the
U.S. domestic tomato growers requested that Commerce resume the suspended
investigation.
Commerce resumed the investigation in October 2019, selected new
mandatory respondents, and collected new economic data from 2018 and 2019.
Commerce issued a final determination on October 25, 2019. No antidumping
duty order was issued because according to the U.S. Court of Appeals for the
Federal Circuit (“CAFC”) in Bioparques de Occidente, S.A. de C.V. v. United
States (“Bioparques II”), 31 F.4th 1336, 1343–48 (Fed. Cir. 2022), the 2019
suspension agreement still “remains in effect.”1
1 This Court previously dismissed the complaints in these cases under USCIT Rule 12(b)(1) for lack of subject matter jurisdiction because an antidumping duty order had not been issued under the terms of the 2019 suspension agreement. The CAFC affirmed in part and remanded in part. Bioparques II, 31 F.4th at 1343–48. The CAFC held that an affirmative final determination in a continued investigation that involves exports from a Free Trade Agreement country is reviewable by the U.S. Consol. Court No. 19-00204 Page 4
Commerce explained that notwithstanding its October 2019 continuation and
completion of the investigation, and issuance of a final determination, the 2019
suspension agreement remains in effect. Commerce stated in its final
determination that it would not issue an antidumping duty order so long as the
2019 agreement remains in force, continues to meet the requirements of section
734(c) and (d) of the Tariff Act of 1930, as amended, and the parties to the
agreement carry out their obligations under the 2019 agreement in accordance with
its terms.
The Court now reviews the Final Determination from October 2019. Fresh
Tomatoes from Mexico (“Final Determination”), 84 Fed. Reg. 57,401 (Dep’t of
Commerce Oct. 25, 2019) (final determination of sales at less than fair value), and
accompanying Final Issues and Decisions Memorandum (“Final IDM”), PR 496.2
The Mexican tomato growers argue that Commerce should have used the original
data collected from 1995 and 1996 when it resumed the suspended investigation 23
years later, and Defendant and Defendant-Intervenor contend that Commerce was
permitted to use new data collected from new respondents when it reinitiated the
Court of International Trade. The CAFC also recognized that the 2019 suspension agreement is in effect and remains in force and valid. 2 Citations to the administrative record reflect the public record (“PR”) document numbers filed in this case, ECF No. 100. Consol. Court No. 19-00204 Page 5
1996 investigation in 2019. For the reasons explained below, the Court remands
the Final Determination for further consideration.
Plaintiffs Bioparques de Occidente, S.A. de C.V. (“Bioparques”), Agricola
La Primavera, S.A. de C.V. (“Agricola La Primavera”), and Kaliroy Fresh LLC
(collectively, “Plaintiffs”) and Consolidated Plaintiffs Confederacion de
Asociaciones Agricolas del Estado de Sinaloa, A.C., Consejo Agricola de Baja
California, A.C., Asociacion Mexicana de Horticultura Protegida, A.C.,
Asociacion de Productores de Hortalizas del Yaqui y Mayo, and Sistema Producto
Tomate (collectively, “Consolidated Plaintiffs”), challenge the final determination
in the antidumping duty investigation of fresh tomatoes from Mexico conducted by
Commerce. Final Determination; Compl., ECF No. 9; Am. Compl., ECF No. 64;
see also Compl., Court No. 19-00203, ECF No. 14; Am. Compl., Court No. 19-
00203, ECF No. 59; Compl., Court No. 19-00210, ECF No. 9; Am. Compl., Court
No. 19-00210, ECF No. 69. Before the Court are Consolidated Plaintiffs’ Rule
56.2 Motion for Judgment on the Agency Record and Amended Rule 56.2 Motion
for Judgment on the Agency Record and Plaintiffs’ Motion for Judgment on the
Agency Record. Consol. Pls.’ R. 56.2 Mot. J. Agency R., ECF No. 81; Mot. Pls. J.
Agency R., ECF Nos. 82, 83; Consol. Pls.’ Am. R. 56.2 Mot. J. Agency R.
(“Consol. Pls.’ Br.”), ECF No. 92; see also Br. Pls. Supp. R. 56.2 Mot. J. Agency
R. (“Pls.’ Br.”), ECF Nos. 82-1, 83-1. Defendant United States filed Response of Consol. Court No. 19-00204 Page 6
Defendant United States to Plaintiffs’ and Consolidated Plaintiffs’ Rule 56.2
Motions for Judgment on the Agency Record. Resp. Def. Pls.’ Consol. Pls.’ R.
56.2 Mot. J. Agency R. (“Def.’s Br.”), ECF No. 93. Defendant-Intervenor The
Florida Tomato Exchange (“Defendant-Intervenor”) filed its Response Opposing
Plaintiffs’ Motion for Judgment on the Agency Record. Def.-Interv.’s Resp.
Opp’n Pls.’ Mot. J. Agency R. (“Def.-Interv.’s Br.”), ECF Nos. 94, 95. Plaintiffs
filed Reply Brief of Plaintiffs. Reply Br. Pls. (“Pls.’ Reply”), ECF No. 98.
Consolidated Plaintiffs filed Consolidated Plaintiffs’ Reply Brief in Support of its
Amended Rule 56.2 Motion for Judgment on the Agency Record. Consol. Pls.’
Reply Br. Supp. Am. R. 56.2 Mot. J. Agency R. (“Consol. Pls.’ Reply”), ECF No.
99.
BACKGROUND
The Court presumes familiarity with the facts and procedural history set
forth in its prior Orders and Opinions and recounts the facts relevant to the Court’s
review of the pending motions. See Bioparques de Occidente, S.A. de C.V. v.
United States (“Bioparques III”), 47 CIT __, __, 633 F. Supp. 3d 1340, 1343–45
(2023); Bioparques de Occidente, S.A. de C.V. v. United States (“Bioparques I”),
44 CIT __, __, 470 F. Supp. 3d 1366, 1368–70 (2020). Consol. Court No. 19-00204 Page 7
I. Antidumping Duty Investigation and Suspension Agreements
In April 1996, Commerce initiated an antidumping duty investigation to
determine whether imports of fresh tomatoes from Mexico were being, or were
likely to be, sold in the United States at less than fair value. Fresh Tomatoes from
Mexico, 61 Fed. Reg. 18,377 (Dep’t of Commerce Apr. 25, 1996) (initiation of
antidumping duty investigation). After an affirmative preliminary injury
determination from the U.S. International Trade Commission (“ITC”), Commerce
made a preliminary determination that imports of fresh tomatoes from Mexico
were being sold in the United States at less than fair value. Fresh Tomatoes from
Mexico (“Preliminary Determination”), 61 Fed. Reg. 56,608 (Dep’t of Commerce
Nov. 1, 1996) (notice of preliminary determination of sales at less than fair value
and postponement of final determination). Concurrent with Commerce’s
preliminary determination, Commerce published a notice in the Federal Register
announcing an agreement under 19 U.S.C. § 1673c(c) with certain producers and
exporters who accounted for substantially all of the imports of fresh tomatoes from
Mexico into the United States to suspend the antidumping duty investigation on
fresh tomatoes from Mexico. Fresh Tomatoes from Mexico, 61 Fed. Reg. 56,618
(Dep’t of Commerce Nov. 1, 1996) (suspension of antidumping investigation).
Between 1996 and 2013, Commerce and the producers and exporters of tomatoes
from Mexico entered into three further suspension agreements. See Fresh Consol. Court No. 19-00204 Page 8
Tomatoes from Mexico, 67 Fed. Reg. 77,044 (Dep’t of Commerce Dec. 16, 2002)
(suspension of antidumping investigation); Fresh Tomatoes from Mexico, 73 Fed.
Reg. 4831 (Dep’t of Commerce Jan. 28, 2008) (suspension of antidumping
investigation); Fresh Tomatoes from Mexico (“2013 Suspension Agreement”), 78
Fed. Reg. 14,967 (Dep’t of Commerce Mar. 8, 2013) (suspension of antidumping
investigation).
Commerce gave notice to the signatory growers on February 6, 2019 of
Commerce’s intent to withdraw from the 2013 Suspension Agreement. Fresh
Tomatoes from Mexico, 84 Fed. Reg. 7872, 7874 (Dep’t of Commerce Mar. 5,
2019) (intent to terminate suspension agreement, rescind the sunset and
administrative reviews, and resume the antidumping duty investigation); Fresh
Tomatoes from Mexico (“May 2019 Withdrawal Notice”), 84 Fed. Reg. 20,858,
20,860 (Dep’t of Commerce May 13, 2019) (termination of suspension agreement,
rescission of administrative review, and continuation of the antidumping duty
investigation). Commerce withdrew from the 2013 Suspension Agreement on May
7, 2019 and resumed the underlying antidumping investigation. May 2019
Withdrawal Notice, 84 Fed. Reg. at 20,860.
Commerce published a notice on September 24, 2019 that a new suspension
agreement had been reached between Commerce and the signatory parties and that
the antidumping duty investigation had been suspended. Fresh Tomatoes from Consol. Court No. 19-00204 Page 9
Mexico (“2019 Suspension Agreement”), 84 Fed. Reg. 49,987, 49,989 (Dep’t of
Commerce Sept. 24, 2019) (suspension of antidumping duty investigation). The
ITC subsequently announced the suspension of its antidumping investigation.
Fresh Tomatoes from Mexico, 84 Fed. Reg. 54,639 (ITC Oct. 10, 2019)
(suspension of antidumping investigation).
In October 2019, U.S. domestic tomato industry representatives requested
that Commerce continue the investigation. In response to these requests,
Commerce “continued and completed this investigation in accordance with section
734(g) of the Tariff Act of 1930, as amended.” Final Determination, 84 Fed. Reg.
at 57,402. Commerce published its affirmative Final Determination on October
25, 2019, determining that fresh tomatoes from Mexico were being, or were likely
to be, sold in the United States at less than fair value. Id. The ITC issued an
affirmative injury determination on December 12, 2019. Fresh Tomatoes from
Mexico, 84 Fed. Reg. 67,958 (ITC Dec. 12, 2019). As noted earlier, no
antidumping duty order has been issued.
II. Litigation
Plaintiffs filed three separate actions challenging Commerce’s continued
investigation and Final Determination, beginning with filing the Summons in Court
Number 19-00204 on November 22, 2019 and in Court Number 19-00210 on
December 3, 2019. Summons, ECF No. 1; Summons, Court No. 19-00210, ECF Consol. Court No. 19-00204 Page 10
No. 1. Plaintiffs filed the Complaint in Court Number 19-00204 on December 20,
2019 and the Complaint in Court Number 19-00210 on December 23, 2019.
Compl., ECF No. 9; Compl., Court No. 19-00210. Plaintiffs filed the Summons
and Complaint concurrently in Court Number 20-00035 on February 5, 2020.
Summons, Court No. 20-00035, ECF No. 1; Compl., Court No. 20-00035, ECF
No. 4.
Plaintiffs allege ten causes of action.3 See Am. Compl. at 6–8; Am. Compl.
at 6–8, Court No. 19-00210; Compl. at 6–7, Court No. 20-00035. Specifically,
Plaintiffs challenge as unlawful Commerce’s withdrawal from the 2013
Suspension Agreement (claim 1(b)); Commerce’s resumption of the suspended
antidumping duty investigation (claims 1(a) and 1(c)); Commerce’s ending of the
investigation into the respondents that were the subject of Commerce’s 1996
preliminary determination and selection of new respondents for the continued
investigation (claim 2); the procedures Commerce followed in the resumed
investigation (claim 3); and the correctness of certain aspects of the Final
Determination (claims 4–10). Am. Compl. at 6–8; Am. Compl. at 6–8, Court No.
19-00210; Compl. at 6–7, Court No. 20-00035. In all, Plaintiffs ask the Court to
3 Though otherwise identical to the claims asserted in Court Numbers 19-00204 and 19-00210, Plaintiffs’ Complaint in Court Number 20-00035 does not include a count 10. See Compl. at 7, Court No. 20-00035. Consol. Court No. 19-00204 Page 11
declare unlawful and vacate Commerce’s withdrawal from the 2013 Suspension
Agreement and the subsequent Final Determination. Am. Compl. at 8; Am.
Compl. at 8, Court No. 19-00210; Compl. at 7, Court No. 20-00035.
Defendant filed motions to dismiss pursuant to USCIT Rule 12(b)(1) for
lack of subject matter jurisdiction and USCIT Rule 12(b)(6) for failure to state a
claim upon which relief can be granted in each of the cases. Def.’s Mot. Dismiss,
ECF No. 30; Def.’s Mot. Dismiss, Court No. 19-00210, ECF No. 31; Def.’s Mot.
Dismiss, Court No. 20-00035, ECF No. 20. The Court granted the motions and
dismissed Plaintiffs’ claims with prejudice. Bioparques I, 44 CIT at __, 470 F.
Supp. 3d at 1373.
III. Appeal
Plaintiffs appealed the Court’s judgment to the CAFC. Pls.’ Notice of
Appeal, ECF No. 47. The CAFC affirmed in part and remanded in part.
Bioparques II, 31 F.4th at 1343–48. The CAFC affirmed the dismissal of
Plaintiffs’ claims challenging the termination of the 2013 Suspension Agreement
and the negotiation of the 2019 Suspension Agreement. Id. at 1343. The CAFC
also held that because the Final Determination constituted “an affirmative final
determination in a continued investigation that involves exports from [a free trade Consol. Court No. 19-00204 Page 12
agreement] country”4 and is reviewable under 19 U.S.C. § 1516a(g)(3)(A)(i), the
Court has jurisdiction to consider Plaintiffs’ challenges to the Final Determination
under 28 U.S.C. § 1581(c). Id. at 1346–48.
On remand, the Court consolidated Plaintiffs’ three cases with the related
case Confederacion de Asociaciones Agricolas del Estado de Sinaloa, A.C. et al v.
United States, Court No. 19-00203. Consol. Order (Sept. 1, 2022), ECF No. 63.
Plaintiffs filed Amended Complaints on September 1, 2022 in Court Numbers 19-
00204 and 19-00210. Am. Compl.; Am. Compl., Court No. 19-00210.
IV. Motions to Dismiss
On remand, Defendant and Defendant-Intervenor filed motions to dismiss,
seeking dismissal of the remaining claims of Plaintiffs and Plaintiff-Intervenors for
lack of subject matter jurisdiction. Def.’s Mot. Dismiss, ECF No. 65; Def.-
Interv.’s Mot. Dismiss, ECF No. 66. The Court granted the motions in part and
dismissed Plaintiffs’ and Plaintiff-Intervenors’ claims 1(b) in Court Numbers 19-
4 Mexico is a “free trade area country.” At the time Plaintiffs filed their Complaint in January 2020, “free trade area country” included “Mexico for such time as the [North American Free Trade Agreement (“NAFTA”)] is in force with respect to, and the United States applies the NAFTA to, Mexico.” 19 U.S.C. § 1516a(f)(8), (10) (2006). The statute was amended following the replacement of the NAFTA with the United States-Mexico-Canada Agreement (“USMCA”) to define “free trade area country” to include “Mexico for such time as the USMCA is in force with respect to, and the United States applies the USMCA to, Mexico.” 19 U.S.C. § 1516a(f)(9) (2020). Consol. Court No. 19-00204 Page 13
00204 and 19-00210, challenging Commerce’s withdrawal from the 2013
Suspension Agreement, and Court Number 20-00035 in its entirety. Bioparques
III, 47 CIT at __, 633 F. Supp. 3d at 1348–49. The Court denied the motions in
part related to all remaining claims in Court Numbers 19-00204 and 19-00210. Id.
at __, 633 F. Supp. 3d at 1347–49.
JURISDICTION AND STANDARD OF REVIEW
The Court has jurisdiction pursuant to 19 U.S.C. § 1516a(a)(2)(B)(i) and 28
U.S.C. § 1581(c), which grant the Court authority to review actions contesting the
final results in an investigation. The Court will hold unlawful any determination
found to be unsupported by substantial evidence on the record or otherwise not in
accordance with law. 19 U.S.C. § 1516a(b)(1)(B)(i).
DISCUSSION
I. Waiver
Defendant contends that Plaintiffs and Consolidated Plaintiffs waived counts
1(a), 6, 8, and 9 of their Amended Complaints by failing to raise them in their
motions for judgment on the agency record. Def.’s Br. at 11–12. Plaintiffs and
Consolidated Plaintiffs do not contest waiver in their response. See Pls.’ Reply;
Consol. Pls.’ Reply.
“Generally, ‘arguments not raised in the opening brief are waived.’”
Hyundai Steel Co. v. United States, 44 CIT __, __, 483 F. Supp. 3d 1273, 1277 Consol. Court No. 19-00204 Page 14
(2020) (quoting SmithKline Beecha, Corp. v. Apotex Corp., 439 F.3d 1312, 1319
(Fed. Cir. 2006)). Plaintiffs’ count 1(a) challenges Commerce’s authority to
resume or continue its investigation based on the withdrawal of the U.S. domestic
industry from the original petition that led to the investigation and 2013
Suspension Agreement. Am. Compl. at 6. Count 6 challenges Commerce’s
substitution of the product-matching methodology used in the original
investigation with a new methodology. Id. at 8. Counts 8 and 9 challenge
Commerce’s calculation of general and administrative expenses. Id. Plaintiffs and
Consolidated Plaintiffs did not address these issues in their motions for judgment
on the agency record. Therefore, the Court deems these counts waived.
II. Timeliness of the Requests for Continuation
After an investigation has been suspended, an interested party may request a
continuation of the investigation “within 20 days after the date of publication of the
notice of suspension of an investigation.” 19 U.S.C. § 1673c(g). Commerce first
suspended its investigation of fresh tomatoes from Mexico on November 1, 1996.
Fresh Tomatoes from Mexico, 61 Fed. Reg. 56,618. Commerce subsequently
suspended the resumed investigation multiple times, most recently on September
24, 2019. See 2019 Suspension Agreement, 84 Fed. Reg. 49,987; Fresh Tomatoes
from Mexico, 78 Fed. Reg. 14,967; Fresh Tomatoes from Mexico, 73 Fed. Reg.
4831; Fresh Tomatoes from Mexico, 67 Fed. Reg. 77,044. Defendant-Intervenor Consol. Court No. 19-00204 Page 15
filed a request that Commerce continue the investigation on October 11, 2019.
Final Determination, 84 Fed. Reg. at 57,402; Def.-Interv.’s Request Continue
Suspended Less than Fair Value Investigation (Oct. 11, 2019), PR 492. Red Sun
Farms filed a request for a continuation of the investigation on October 15, 2019.
Final Determination, 84 Fed. Reg. at 57,402; Red Sun Farms’ Request Continue
Investigation (Oct. 15, 2019), PR 493.
Plaintiffs argue that Commerce was not authorized to continue its
antidumping investigation in October 2019 because the request for continuation
was not filed by an interested party within 20 days after Commerce published its
original notice of suspension on November 1, 1996. Pls.’ Br. at 14–16. Plaintiffs
propose that section 1673c(g) should be read to require that any request for
continuation be filed within 20 days of the original suspension of an investigation.
Id. at 14. Because Red Sun Farms did not file its continuation request until
October 2019, Plaintiffs assert that the request was filed 24 years too late. In
support of this interpretation, Plaintiffs point to 19 U.S.C. § 1673c(j), which
provides that Commerce “shall consider all of the subject merchandise without
regard to the effect of any agreement” in a continued investigation. Id. at 15; 19
U.S.C. § 1673c(j). Plaintiffs argue that because section 1673c(j) precludes
consideration of events that occurred during the pendency of a suspension
agreement, interpreting section 1673c(g) to allow for continuation after a resumed Consol. Court No. 19-00204 Page 16
investigation “would result in an absurd outcome in which an interested party can
take advantage of the termination and renegotiation of suspension agreements in an
investigation to extend the time limit under subsection (g) indefinitely.” Pls.’ Br.
at 15–16. Defendant argues that the plain language of 19 U.S.C. § 1673c(g)
provides that Commerce may continue an investigation within 20 days of any
notice of suspension being published and does not limit continuations to only the
first notice of suspension. Def.’s Br. at 13, 14–17.
In interpreting a statute, courts must give effect to the plain meaning of the
statutory language. See Star Athletica, LLC v. Varsity Brands, 580 U.S. 405, 414
(2017) (citing Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 476 (1992)).
The inquiry begins with the text, “giving each word its “ordinary, contemporary,
common meaning.” Id. (quoting Walters v. Metro. Ed. Enters., Inc., 519 U.S. 202,
207 (1997)).
19 U.S.C. § 1673c(g) reads:
Investigation to be continued upon request
If the administering authority, within 20 days after the date of publication of the notice of suspension of an investigation, receives a request for the continuation of the investigation from—
(1) an exporter or exporters accounting for a significant proportion of exports to the United States of the subject merchandise, or Consol. Court No. 19-00204 Page 17
(2) an interested party described in subparagraph (C), (D), (E), (F), or (G) of section 1677(9) of this title which is a party to the investigation,
then the administering authority and the Commission shall continue the investigation.
19 U.S.C. § 1673c(g). The language of the statute does not expressly restrict an
exporter or interested party to requesting a continuation of an investigation only
following the initial notice of suspension. The statute uses the more general
language of “the notice of suspension of an investigation.” 19 U.S.C. § 1673c(g)
(emphasis added). “In defining the plain meaning of a statute, courts must avoid
‘add[ing] conditions’ to the applicability of a statute that do not appear in the
provision’s text.” Hymas v. United States, 810 F.3d 1312, 1324 (2016) (alteration
in original) (quoting Norfolk Dredging Co. v. United States, 375 F.3d 1106, 1111
(Fed. Cir. 2004)).
Plaintiffs argue that interpreting subsection (g) to allow a party to request a
continuation of a resumed investigation would conflict with subsection (j). Pls.’
Br. at 15. 19 U.S.C. § 1673c(j) reads:
In making a final determination under section 1673d of this title, or in conducting a review under section 1675 of this title, in a case in which the administering authority has terminated a suspension of investigation under subsection (i)(1), or continued an investigation under subsection (g), the Commission and the administering authority shall consider all of the subject merchandise without regard to the effect of any agreement under subsection (b) or (c). Consol. Court No. 19-00204 Page 18
19 U.S.C. § 1673c(j). In discerning Congress’ statutory intent, the Court does not
interpret one provision in isolation but considers the statute as a whole. See Star
Athletica, 508 U.S. at 414 (citations omitted). Plaintiffs suggest that under
subsection (j), allowing investigations to continue following periods of suspension
“would result in an absurd outcome in which an interested party can take
advantage of the termination and renegotiation of suspension agreements in an
investigation to extend the time limit under subsection (g) indefinitely.” Pls.’ Br.
at 15.
The Court concludes that there is no inconsistency between 19 U.S.C.
§ 1673c(j) and 19 U.S.C. § 1673c(g) as proposed by Plaintiffs. Subsection (j) does
not expressly impose any type of temporal limitation on Commerce’s ability to
resume its investigation only after the initial suspension, and the Court will not
read any such limitation into the statute. See 19 U.S.C. § 1673c(j). If Commerce
and parties are permitted to repeatedly suspend an investigation over several years,
it is reasonable that the interested parties might request a continuation of the
investigation following each new negotiated suspension. The Court concludes that
Commerce’s determination that Defendant-Intervenor and Red Sun Farms filed
timely requests for continuation in October 2019 following the suspension
agreement entered into in September 2019 was in accordance with law. Consol. Court No. 19-00204 Page 19
III. Commerce’s Resumed Investigation
Commerce’s original investigation of fresh tomatoes from Mexico covered
sales during the period of March 1, 1995 through February 29, 1996 and involved
six mandatory respondents. See Preliminary Determination, 61 Fed. Reg. at
56,608–10. In May 2019, Commerce withdrew from the 2013 Suspension
Agreement and continued the underlying antidumping duty investigation. May
2019 Withdrawal Notice, 84 Fed. Reg. 20,858. In the notice of withdrawal,
Commerce described the new period of investigation as follows:
The original period of investigation was March 1, 1995, through February 29, 1996. Due to the unusual procedural posture of this proceeding, in which we are terminating a suspension agreement and continuing an investigation that covers a period of investigation that dates back more than 23 years, Commerce will be requesting information corresponding to the most recent four full quarters, i.e., April 1, 2018 through March 31, 2019.
Id. at 20,860–61. Commerce also explained respondent selection as:
In light of the unusual procedural posture of this proceeding, Commerce finds it appropriate to reconsider respondent selection. Commerce intends to evaluate U.S. Customs and Border Protection [] data for U.S. imports of fresh tomatoes from Mexico for the most recent four quarters under the appropriate Harmonized Tariff Schedule of the United States [] numbers listed in the “Scope of the Investigation” section above and select mandatory respondents in accordance with section 777A(c) of the Act. Consol. Court No. 19-00204 Page 20
Id. at 20,861. Commerce indicated that it would issue its final determination
within 135 days after the withdrawal from and termination of the 2013 Suspension
Agreement became effective. Id. at 20,860.
Plaintiffs argue that Commerce did not “resume” its prior investigation, but
instead initiated a completely new investigation based on new data and new
respondents. Pls.’ Br. at 16–18. Defendant counters that Plaintiffs have not
provided statutory or regulatory support for this argument. Def.’s Br. at 17–20.
When Commerce determines that a suspension agreement has been violated,
no longer eliminates the injurious effect of dumping, or is no longer in the public
interest, if the investigation was not completed, Commerce shall “resume the
investigation as if its affirmative preliminary determination were made on the date
of its determination.” 19 U.S.C. § 1673c(i)(1)(B); 19 C.F.R. § 351.209(b)(2),
(c)(4). The term “resume” is not defined by statute or regulation. See 19 U.S.C.
§ 1677 (definitions; special rules); 19 C.F.R. § 351.102 (definitions).
Plaintiffs contend that the term “resume,” as used in the statute and
regulations, requires Commerce to base its final determination on the data and
mandatory respondents from the suspended 1996 investigation. Pls.’ Br. at 17.
Defendant counters that Commerce did resume the 1996 investigation but, because
of the “unusual procedural posture of this proceeding” determined that more recent
economic information and new mandatory respondents should be selected. Def.’s Consol. Court No. 19-00204 Page 21
Br. at 18; see also Final Determination. Defendant contends that Commerce did
not start a “new” investigation, but merely “resumed” the prior investigation
consistent with Commerce’s applicable regulations. Def.’s Br. at 19. Defendant
also explains that Commerce applied the 1996 regulations in its analysis. Id.
When resolving an issue of statutory interpretation, the Court begins with
the language of the statute and “the assumption that the ordinary meaning of that
language accurately expresses the legislative purpose.” Park ‘N Fly, Inc. v. Dollar
Park and Fly, Inc., 469 U.S. 189, 195 (1985); see also Obsidian Sols. Grp., LLC v.
United States, 54 F.4th 1371, 1374 (Fed. Cir. 2022) (“When tasked with
interpreting a statute, we start by exhausting all traditional tools of interpretation to
determine its meaning. The starting point is the text itself.”).
Section 1673c(i)(1) provides in relevant part:
If the administering authority determines that an agreement accepted under subsection (b) or (c) is being, or has been, violated, or no longer meets the requirements of such subsection (other than the requirement, under subsection (c)(1), of elimination of injury) and subsection (d), then, on the date of publication of its determination, it shall . . . if the investigation was not completed, resume the investigation as if its affirmative preliminary determination were made on the date of its determination under this paragraph.
19 U.S.C. § 1673c(i)(1)(B) (emphasis added). The Court finds this language to be
unambiguous. Congress’ use of the verb “resume” evidences an intention that
Commerce should continue the investigation already begun prior to the initial Consol. Court No. 19-00204 Page 22
suspension; in addition, the phrase “date of its determination” modifies
“affirmative preliminary determination.” Here, the Preliminary Determination was
made on November 1, 1996, and thus under 19 U.S.C. § 1673c(i)(1)(B),
Commerce should resume the investigation as if its affirmative preliminary
determination was made on the date of its determination—November 1, 1996. To
read the statute as permitting drastic changes in the period of investigation or to
allow the selection of completely new mandatory respondents following the
suspension would render meaningless the preliminary determination prior to the
initial suspension agreement.
Moreover, the Court recognizes that adopting Defendant’s proposed
interpretation risks creating prejudice for newly selected respondents. In a normal
antidumping duty investigation, Commerce is required to issue its preliminary
determination within 140 days of the initiation of the investigation and the final
determination is to be issued within 75 days thereafter. 19 U.S.C. §§ 1673b(b)(1),
1673d(a)(1). Commerce may extend these deadlines subject to some limitations.
Id. §§ 1673b(c), 1673d(a)(2). Under this timeline, a newly initiated investigation
will normally last at least 215 days. In a resumed investigation, because it is
presumed that an affirmative preliminary determination was issued prior to
suspension, the final determination is due to be issued within 75 days of the
resumption. Id. §§ 1673b(c), 1673c(i)(1)(b). This results in a compressed Consol. Court No. 19-00204 Page 23
timeline, and newly added mandatory respondents would be limited in their ability
to produce and challenge new data. Without having the benefit of the preliminary
determination phase that was completed in 1996, the newly selected mandatory
respondents in 2019 did not have the opportunity to provide initial information to
Commerce, review a preliminary determination, and submit administrative briefs
in response, and then challenge the final determination in court.
Defendant argues that Commerce never expressly purported to initiate a new
investigation and that the regulations in effect during the original 1996
investigation permitted Commerce to consider data from a later period of time.
Def.’s Br. at 18–19. The relevant regulation reads:
[Commerce] normally will examine not less than 60 percent of the dollar value or volume of the merchandise sold during a period of at least 150 days prior to and 30 days after the first day of the month during which the petition was filed or the Secretary initiated the investigation under § 353.11, but [Commerce] may examine the merchandise for any additional or alternative period [Commerce] concludes is appropriate.
19 C.F.R. § 353.42 (1996). Defendant contends that the regulation provides
Commerce with a degree of discretion to look beyond the normal temporal borders
of its investigations; however, the regulation cannot be read to overwrite or conflict
with the clear intention of Congress expressed in Section 1673c(i)(1)(B). Congress
clearly expressed its intention in Section 1673c(i)(1)(B) for a resumed
investigation to be a continuation of the investigation conducted prior to Consol. Court No. 19-00204 Page 24
suspension, building from an existing preliminary determination. The statutory
language of section 1673c(i)(1)(B) is particularly relevant that, “if the investigation
was not completed, [Commerce shall] resume the investigation as if its affirmative
preliminary determination were made on the date of its determination under this
paragraph.” 19 U.S.C. § 1673c(i)(1)(B) (emphasis added).
Commerce cannot avoid this statutory requirement by arguing that the Court
should accept that the investigation was “resumed” merely because Commerce
never used the phrase “new investigation.” The preliminary determination
examined six mandatory respondents for the period from 1995–1996. The Final
Determination examined three completely different mandatory respondents for the
period from 2018–2019. Thus, based on the facts in this case, the Court finds that
Commerce’s selection of new mandatory respondents and changing the period of
investigation from 1995–1996 to 2018–2019 de facto initiated a new investigation.
Because Commerce started a new investigation rather than resumed the affirmative
preliminary determination, Commerce’s Final Determination is not in accordance
with law.
The Court also notes that in at least two prior instances when Commerce
resumed the investigation in this case in 2008 and 2013, Commerce’s notices
resuming the investigation indicated that the period of investigation would be the
same March 1995 to February 1996 timeframe considered in the original 1996 Consol. Court No. 19-00204 Page 25
investigation and affirmative preliminary determination. Pls.’ Br. at 11; Fresh
Tomatoes from Mexico, 73 Fed. Reg. 2887, 2888 (Dep’t of Commerce Jan. 16,
2008) (notice of termination of suspension agreement, termination of five-year
sunset review, and resumption of antidumping investigation); Fresh Tomatoes
from Mexico, 78 Fed. Reg. 14,771, 14,967 (Dep’t of Commerce Mar. 7, 2013)
(termination of suspension agreement, termination of five-year sunset review, and
resumption of antidumping investigation). Clearly at least twice before in this
case, Commerce recognized that it needed to resume the investigation by using the
same period of investigation in the affirmative preliminary determination.
Even though it may be difficult in 2024 to investigate the fresh tomato
market in 1995–1996, and there may be concerns whether all of the relevant record
evidence is still available,5 Commerce is required by statute to resume the prior
investigation that was suspended after issuing the affirmative preliminary
determination. This means that Commerce’s Final Determination must resume its
investigation flowing from the affirmative preliminary determination issued on
November 1, 1996, including focusing its analysis on the evidence submitted
regarding the original period of investigation of March 1, 1995 through February
29, 1996, and reviewing the original six mandatory respondents, thereby
5 Apparently, Commerce is no longer able to locate a number of record documents from the 1996 investigation. Pls.’ Br. at 11. Consol. Court No. 19-00204 Page 26
complying with the statutory requirement to “resume the investigation as if its
affirmative preliminary determination were made on the date of its determination
under this paragraph.” 19 U.S.C. § 1673c(i)(1)(B) (emphasis added).
The Court concludes that Commerce’s Final Determination is not in
accordance with law and remands the matter to Commerce for further
consideration in accordance with this Opinion.
IV. Remaining Issues
The Court is remanding the Final Determination in light of Commerce’s
erroneous examination of the 2018–2019 period of investigation with new
mandatory respondents. Plaintiffs challenge numerous additional aspects of the
Final Determination, including whether sales during the suspension period should
have been disregarded, Commerce’s use of the differential pricing analysis,
Commerce’s use of the investigation period of 2018–2019 rather than monthly
averages, and inclusion of high-priced home market sales in the normal value
calculation. Because Commerce will change its analysis when it resumes the
investigation for the appropriate period of 1995–1996, much of the Court’s
analysis on these remaining issues regarding the 2019 investigation would be
rendered inapplicable. Thus, the Court defers its analysis of most of the remaining
issues until after Commerce’s remand redetermination in the resumed
investigation. Consol. Court No. 19-00204 Page 27
CONCLUSION
Accordingly, it is hereby
ORDERED that counts 1(a), 6, 8, and 9 of Plaintiffs’ and Consolidated
Plaintiffs’ Amended Complaints are dismissed as waived; it is further
ORDERED that the Court sustains Commerce’s determination that the
requests for continuation filed by Defendant-Intervenor and Red Sun Farms were
timely; it is further
ORDERED that the Final Determination is remanded to Commerce to
reconsider consistent with this Opinion the selection of new respondents and
consideration of recent data in its resumed investigation; and it is further
ORDERED that this case shall proceed according to the following schedule:
(1) Commerce shall file its remand determination on or before August 16,
2024;
(2) Commerce shall file the administrative record on or before August 30,
(3) Comments in opposition to the remand determination shall be filed on
or before September 27, 2024; Consol. Court No. 19-00204 Page 28
(4) Comments in support of the remand determination shall be filed on or
before October 25, 2024; and
(5) The joint appendix shall be filed on or before November 22, 2024.
/s/ Jennifer Choe-Groves Jennifer Choe-Groves, Judge
Dated: April 17, 2024 New York, New York