Slip Op. 25-43
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,
NS BRANDS, LTD., NATURESWEET INVERNADEROS S. DE R.L. DE C.V., AND NATURESWEET COMERCIALIZADORA, S. DE R.L. DE C.V.,
Plaintiff-Intervenors,
v. Consol. Court No. 19-00204 Page 2
UNITED STATES,
Defendant,
and
THE FLORIDA TOMATO EXCHANGE,
Defendant-Intervenor.
OPINION AND ORDER
[Sustaining the U.S. Department of Commerce’s resumed antidumping duty investigation of fresh tomatoes from Mexico.]
Dated: April 17, 2025
Jeffrey M. Winton, Amrietha Nellan, Michael J. Chapman, 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.
Yujin K. McNamara, Bernd G. Janzen, Devin S. Sikes, and Paul S. Bettencourt, 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.
Jessica R. DiPietro, Leah N. Scarpelli, and Matthew M. Nolan, ArentFox Schiff LLP, of Washington, D.C., for Plaintiff-Intervenors NS Brands, Ltd., Naturesweet Invernaderos S. de R.L. de C.V., and NatureSweet Comercializadora, S. de R.L. de C.V.
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 Consol. Court No. 19-00204 Page 3
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 began nearly three decades ago when 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 preliminary determination in 1996 that
Mexican tomatoes were being, or were likely to be, sold in the U.S. at less than fair
value. Before a final determination was issued, Commerce and the Mexican
tomato growers entered into an agreement to suspend the investigation. A series of
subsequent agreements (in 1996, 2002, 2008, and 2013) were negotiated over the
following years. 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. Consol. Court No. 19-00204 Page 4
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. 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 494.1
This Court remanded the Final Determination to Commerce, holding that
Commerce erroneously relied on an examination of the 2018–2019 period of
investigation, rather than the original period of investigation, March 1, 1995
through February 29, 1996. Bioparques de Occidente, S.A. de C.V. v. United
States (“Bioparques IV”), 48 CIT __, __, 698 F. Supp. 3d 1265, 1273–76 (2024).
Now before the Court is Commerce’s Redetermination Pursuant to Court Remand
Order. Redetermination Pursuant Ct. Remand Order (“Remand Redetermination”),
ECF Nos. 120, 121.
Plaintiff-Intervenors NS Brands, Ltd., Naturesweet Invernaderos S. de R.L.
de C.V., and NatureSweet Comercializadora, S. de R.L. de C.V. (collectively,
“Plaintiff-Intervenors”) filed Plaintiff-Intervenors’ Comments in Opposition to
Remand Redetermination. Pl.-Intervs.’ Cmts. Opp’n Remand Redetermination
1 Citations to the administrative record reflect the public record (“PR”) and public remand record (“PRR”) document numbers filed in this case, ECF Nos. 100, 138. Consol. Court No. 19-00204 Page 5
(“Pl.-Intervs.’ Br.”), ECF No. 130. Defendant-Intervenor The Florida Tomato
Exchange filed Defendant-Intervenor’s Comments Supporting Commerce’s
Remand Determination. Def.-Interv.’s Cmts. Supp. Commerce Remand
Determination (“Def.-Interv.’s Br.”), ECF Nos. 131, 132. Defendant United States
filed Defendant’s Response to NatureSweet’s Comments on Remand
Redetermination. Def.’s Resp. Pl.-Intervs.’ Cmts. Remand Redetermination
(“Def.’s Br.”), ECF No. 133. 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”) filed Consolidated Plaintiffs’
Comments in Support of the Final Results of Redetermination Pursuant to Court
Remand. Consol. Pls.’ Cmts. Supp. Final Results Redetermination Pursuant Ct.
Remand (“Consol. Pls.’ Br.”), ECF No. 134. Plaintiffs Bioparques de Occidente,
S.A. de C.V., Agricola La Primavera, S.A. de C.V., and Kaliroy Fresh LLC
(collectively, “Plaintiffs”) filed Comments of Plaintiffs in Support of Remand
Redetermination. Cmts. Pls. Supp. Remand Redetermination (“Pls.’ Br.”), ECF
No. 136. For the reasons discussed below, the Court sustains Commerce’s
Remand Redetermination. Consol. Court No. 19-00204 Page 6
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 Remand Redetermination. See Bioparques IV, 48 CIT at __, 698 F.
Supp. 3d at 1268–71; 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).
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 Consol. Court No. 19-00204 Page 7
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
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, Consol. Court No. 19-00204 Page 8
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, stating 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 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 Consol. Court No. 19-00204 Page 9
affirmative injury determination on December 12, 2019. Fresh Tomatoes from
Mexico, 84 Fed. Reg. 67,958 (ITC Dec. 12, 2019).
II. Litigation
In 2019, Plaintiffs filed three separate actions challenging Commerce’s
continued investigation and Final Determination. Summons, ECF No. 1; Compl.,
ECF No. 9; Summons, Court No. 19-00210, ECF No. 1; Compl., Court No. 19-
00210, ECF No. 9; Summons, Court No. 20-00035, ECF No. 1; Compl., Court No.
20-00035, ECF No. 4. The Court dismissed the cases under USCIT Rules 12(b)(1)
and 12(b)(6) for lack of subject matter jurisdiction and for failure to state a claim
on which relief could be granted. Bioparques I, 44 CIT at __, 470 F. Supp. 3d at
1373.
The U.S. Court of Appeals for the Federal Circuit (“CAFC”) affirmed the
Court’s dismissal of Plaintiffs’ claims challenging the termination of the 2013
Suspension Agreement and the negotiation of the 2019 Suspension Agreement.
Bioparques de Occidente, S.A. v. United States (“Bioparques II”), 31 F.4th 1336,
1343 (Fed. Cir. 2022). The CAFC remanded the remainder of the claims, holding
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 10
agreement] country”2 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 later
consolidated Plaintiffs’ three cases with the related case Confederacion de
Asociaciones Agricolas del Estado de Sinaloa, A.C. 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., ECF No. 64; Am. Compl., Court
No. 19-00210, ECF No. 69. The Amended Complaints raise ten causes of action.
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
2 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 11
subject of Commerce’s 1996 Preliminary Determination and selection of new
respondents for the continued investigation (claim 2); the procedures that
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 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.
On motions to dismiss filed by Defendant and Defendant-Intervenor, this
Court dismissed Plaintiffs’ and Plaintiff-Intervenors’ claims 1(b) in Court Numbers
19-00204 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. Plaintiffs and Consolidated
Plaintiffs filed motions for judgment on the agency record, challenging the Final
Determination. 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., ECF No. 92.
The Court dismissed claims 1(a), 6, 8, and 9 of the Amended Complaints, deeming
those claims to have been waived. Bioparques IV, 48 CIT at __, 698 F. Supp. 3d
at 1271, 1277. The Court further held that Commerce was required to “resume its Consol. Court No. 19-00204 Page 12
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,” and erred in
examining three completely different mandatory respondents for the period from
2018–2019. Id. at __, 698 F. Supp. 3d at 1276–77. The Final Determination was
remanded to Commerce to correct these errors. Id. at __, 698 F. Supp. 3d at 1277.
III. Remand
On remand, Commerce invited parties to submit new factual information and
comments regarding the operating status and current ownership of the seven
mandatory respondents from the original investigation, changes to the Mexican
tomato industry since the 1995–1996 period of investigation, and changes to the
United States tomato industry since the 1995–1996 period of investigation.
Remand Redetermination at 9; Commerce’s Letter All Interested Parties Re: Fresh
Tomatoes from Mexico: Request Info., PRR 3. Commerce received comments
from Plaintiff-Intervenors; Consolidated Plaintiffs; Defendant-Intervenor; the
Fresh Produce Association of the Americas; and Mastronardi Produce – USA, Inc.,
Mastronardi International, Ltd., and Mastronardi Produce, Ltd. Remand
Redetermination at 9; Pl.-Intervs.’ Resp. Request Info., PRR 22. Commerce issued
a draft remand redetermination on September 27, 2024. Draft Results Consol. Court No. 19-00204 Page 13
Redetermination Pursuant Ct. Remand (“Draft Remand Redetermination”), PRR
39. Plaintiff-Intervenors filed comments before Commerce on the Draft Remand
Redetermination, in which they argued that they were entitled to a changed
circumstances or new shipper review. Pl.-Intervs.’ Cmts. Draft Remand
Redetermination, PRR 66.
In its Remand Redetermination, Commerce evaluated the 1995–1996 data
from the original seven respondents individually examined during the 1996 and
2002 investigation and calculated dumping margins using the 1995–1996 data.
Remand Redetermination at 2–31, 35–36. Commerce determined that it was not
appropriate to initiate a new shipper or changed circumstances review for Plaintiff-
Intervenor. Id. at 32–33. Commerce issued its Remand Redetermination under
protest. Id. at 2.
Shortly after the Remand Redetermination was issued, Plaintiff-Intervenors
filed their Partial Consent Motion to Intervene Out of Time, in which Plaintiff-
Intervenors sought to intervene as a matter of right pursuant to USCIT Rule 24(a).
Pl.-Intervs.’ Part. Consent Mot. Interv. Out Time, ECF No. 122. The Court
granted Plaintiff-Intervenor’s motion and permitted intervention. Bioparques de
Occidente, S.A. de C.V. v. United States (“Bioparques V”), 48 CIT __, 745 F.
Supp. 3d 1322 (2024). Consol. Court No. 19-00204 Page 14
JURISDICTION AND STANDARD OF REVIEW
The U.S. Court of International Trade 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 determination of an antidumping duty
investigation. The Court will hold unlawful any determination found to be
unsupported by substantial record evidence or otherwise not in accordance with
law. 19 U.S.C. § 1516a(b)(1)(B)(i). The Court reviews determinations made on
remand for compliance with the Court’s remand order. Ad Hoc Shrimp Trade
Action Comm. v. United States, 38 CIT 727, 730, 992 F. Supp. 2d 1285, 1290
(2014), aff’d, 802 F.3d 1339 (Fed. Cir. 2015).
DISCUSSION
I. Remand Redetermination
The Court remanded the Final Determination for Commerce to “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.” Bioparques IV,
48 CIT at __, 698 F. Supp. 3d at 1276.
On remand, Commerce determined that seven respondents were individually
examined in the 1996 and 2002 investigation: San Vicente Camalu (“Camalu”); Consol. Court No. 19-00204 Page 15
Ernesto Fernando Echavarria Salazar Grupo Solidaio (“Echavarria”); Arturu
Lomeli Villalobas S.A. de C.V. (“Lomeli”); Eco-Cultivos S.A. de C.V. (“Eco-
Cultivos”); Ranchos Los Pinos S. de R.L. de C.V. (“Los Pinos”); Administradora
Horticola del Tamazula (“Tamazula”); and Agricola Yory, S. de P.R. de. R.I.
(“Yory”). Remand Redetermination at 10. These respondents represented the
largest exporters of fresh tomatoes from Mexico at the time of the initial
investigation. Id. at 10–11. Because a significant amount of time had passed since
the initial investigation, Commerce reopened the administrative record and
solicited additional information on the operating status and ownership of the
original mandatory respondents, changes to the Mexican tomato industry since the
1995–1996 period of investigation, and changes to the American tomato industry
since the 1995–1996 period of investigation. Id. at 9; Commerce’s Letter All
Interested Parties Re: Fresh Tomatoes from Mexico: Request Info.
Commerce received comments and information on behalf of Eco-Cultivos,
Yory, Echavarria, Los Pinos, and Camalu. Id. at 11; Pl.-Intervs.’ Resp. Request
Info. Plaintiff-Intervenors submitted that Eco-Cultivos was no longer operational
and that Plaintiff-Intervenors purchased Eco-Cultivos’ greenhouse assets in 1999.
Remand Redetermination at 11–12; Pl.-Intervs.’ Resp. Request Info. at 5.
Consolidated Plaintiffs informed Commerce that Yory, Echavarria, and Los Pinos
were no longer in operation. Remand Redetermination at 12. Two current Consol. Court No. 19-00204 Page 16
suspension agreement signatories acquired certain of Yory’s assets and another
signatory acquired Echavarria’s assets. Id. Los Pinos merged with a current
signatory. Id. Consolidated Plaintiffs also advised that Camalu continued to
operate and had the same ownership structure as it did during the initial
investigation. Id. No party provided information on the current operating status
and ownership of Lomeli or Tamazula. Id. at 13. Commerce noted information
from the 2002 investigation reflecting that Cultivos and Lomeli were no longer in
operation and recently submitted information confirming that Camalu was still
operational. Id.
Based on the information available, Commerce calculated dumping margins
for each of the seven original mandatory respondents. Id. Because Commerce was
unable to verify, in whole or in part, information on the record for Yory, Los Pinos,
Eco-Cultivos, and Lomeli, dumping margins for those companies were calculated
based on adverse facts available. Id. at 13, 15–22.
Commerce explained that at the time of the initial investigation, its normal
methodology involved “zeroing,” the practice of treating negative individual
margins as zero percent when calculating weighted-average antidumping duty
margins for exporters if the exporter’s individual sales transactions were not
dumped. Id. at 21. Commerce abandoned the practice of zeroing after the initial
investigation and “implemented a modification to provide offsets for non-dumped Consol. Court No. 19-00204 Page 17
comparisons when using monthly average-to-average comparisons[.]” Id. at 21–
22; see Antidumping Proceedings, 77 Fed. Reg. 8101 (Dep’t of Commerce Feb.
14, 2012) (calculation of the weighted-average dumping margin and assessment
rate in certain antidumping duty proceedings; final modification); Antidumping
Proceedings, 71 Fed. Reg. 77,722 (Dep’t of Commerce Dec. 27, 2006) (calculation
of the weighted-average dumping margin during an antidumping investigation;
final modification). In the Remand Redetermination, consistent with its current
practice, Commerce did not apply zeroing. Remand Redetermination at 22.
Though not a part of Commerce’s normal methodology at the time of the
initial investigation, Commerce conducted a differential pricing analysis on
remand to determine which comparison method to apply. Id. Commerce applied
the average-to-transaction method to U.S. sales for Camalu and Echavarria that
passed the Cohen’s d test component of its differential pricing analysis and the
average-to-average method to U.S. sales that did not pass the Cohen’s d test
component of its differential pricing analysis. Id. at 25–26. Commerce applied the
average-to-average method for all U.S. sales in calculating Tamazula’s weighted-
average dumping margin. Id. at 26. Commerce calculated the all-others rate based
on the weighted-average of the estimated weighted-average dumping margins
calculated for Camalu, Echavarria, and Tamazula in accordance with 19 U.S.C.
§ 1673d(5)(A). Id. at 27. Consol. Court No. 19-00204 Page 18
Commerce acknowledged that the U.S. market for fresh tomatoes had
changed since the initial investigation. Id. Based on data from U.S. Customs and
Border Protection, Commerce determined that imports of specialty tomatoes had
increased. Id. at 27, App. II. Commerce also noted that sales of fresh tomatoes at
the time of the initial investigation were predominantly round tomatoes. Id. at 27–
28 (citing Fresh Tomatoes from Mexico, USITC Inv. No. 731-TA-747
(Preliminary), USITC Pub. No. 2967 at I-2 (May 1996)). Commerce requested
additional information on the changed circumstances in the Mexican and United
States fresh tomato industries since the original investigation. Id. at 28; Letter All
Interested Parties Re: Fresh Tomatoes from Mexico: Request Info. at 2. The
comments provided to Commerce indicated an increase in demand for Roma
tomatoes and that several varieties of specialty tomatoes now on the market did not
exist at the time of the initial investigation. Remand Redetermination at 28–29.
Party comments also reflected changes in growing techniques and market
demands, such as a shift by Mexican producers to greenhouses and other protected
agricultural techniques. Id. at 29; Pl.-Intervs.’ Resp. Request Info. 8–10, 16–17.
In the Remand Redetermination, Commerce acknowledged that the sales and
cost data from the original investigation did not represent the current fresh
tomatoes industry and market, and Commerce determined that it was not able to
address the issue without using more contemporaneous data. Remand Consol. Court No. 19-00204 Page 19
Redetermination at 29–30. Based on its understanding of the Court’s remand
order, Commerce relied on the 1995–1996 data provided by the original
respondents. Id. at 30. Commerce compared tomatoes sold in the home market
and tomatoes sold to the United States with identical varieties of tomatoes. Id. If
no identical tomato type was available, Commerce compared United States sales to
a normal value based on constructed value. Id.
No party challenges Commerce’s methodology or calculations in the
Remand Redetermination. Pls.’ Br. at 2; Consol. Pls.’ Br. 2–4; Pl.-Intervs.’ Br. at
2; Def.’s Br. at 4–5; Def.-Interv.’s Br. at 2–3. Consistent with the Court’s order in
Bioparques IV, Commerce resumed its investigation from the point of its 1996
Preliminary Determination and calculated its dumping margins based on the
evidence available for the original mandatory respondents during the original
period of investigation. Bioparques IV, 48 CIT at __, 698 F. Supp. 3d at 1276.
The Court sustains Commerce’s Remand Redetermination as supported by
substantial evidence, in accordance with law, and consistent with the Court’s order
on remand.
II. Plaintiff-Intervenors’ Claim
Plaintiff-Intervenors argued before Commerce that they were entitled to an
individual calculated dumping margin based on the current market because
Plaintiff-Intervenors did not exist during the initial investigation, and because Consol. Court No. 19-00204 Page 20
certain produce, export, and import varieties of tomatoes did not exist during the
initial period of investigation. Remand Redetermination at 31–32; Pl.-Intervs.’
Cmts. Draft Remand Redetermination at 3. Plaintiff-Intervenors argued that
changes in the commercial and market conditions that have occurred since the
initial period of investigation warranted a changed circumstances review. Remand
Redetermination at 32; Pl.-Intervs.’ Cmts. Draft Remand Redetermination at 3.
Plaintiff-Intervenors also argued that they qualified as new shippers for purposes of
obtaining an individual dumping margin. Remand Redetermination at 32; Pl.-
Intervs.’ Cmts. Draft Remand Redetermination at 3.
In the Remand Redetermination, Commerce determined not to initiate a new
shipper review or changed circumstances review for Plaintiff-Intervenor. Remand
Redetermination at 32. Commerce reasoned that 19 U.S.C. § 1675(a)(2)(B) and
(b)(1) require the existence of an antidumping duty order as a prerequisite for
initiating either of the requested reviews. Id. at 32–33; see 19 U.S.C.
§§ 1675(a)(2)(B), (b)(1). Commerce acknowledged that Section 1675(b)(1)(B)
provides that Commerce may initiate a changed circumstances review of a
suspension agreement but determined that the Court’s remand was limited to the
scope of the Final Determination, which did not include the suspension agreement.
Id. at 33. Plaintiff-Intervenors now challenge Commerce’s determination to not
conduct a changed circumstances or new shipper review. Pl.-Intervs.’ Br. at 4–7. Consol. Court No. 19-00204 Page 21
Plaintiffs and Defendant challenge Plaintiff-Intervenors’ ability to bring
their asserted claim in this action, arguing that the Court lacks jurisdiction over the
claims and that Plaintiff-Intervenors lack standing. Pls.’ Br. at 3; Def.’s Br. at 5–7.
A. Jurisdiction
As an initial matter, Plaintiffs and Defendant contend that the Court lacks
jurisdiction to consider Plaintiff-Intervenors’ claims. Pls.’ Br. at 3; Def.’s Br. at 5–
6. Whether a court has subject matter jurisdiction to hear an action is a threshold
inquiry. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998). The U.S.
Court of International Trade, like all federal courts, is one of limited jurisdiction
and is “presumed to be ‘without jurisdiction’ unless ‘the contrary appears
affirmatively from the record.’” DaimlerChrysler Corp. v. United States, 442 F.3d
1313, 1318 (Fed. Cir. 2006) (quoting King Iron Bridge & Mfg. Co. v. Otoe Cty.,
120 U.S. 225, 226 (1887)). The party invoking federal court jurisdiction bears the
burden of establishing it and must allege sufficient facts to establish the court’s
jurisdiction. Id.
At the time of filing its claims, a party is required to provide “a short and
plain statement of the grounds for the court’s jurisdiction, unless the court already
has jurisdiction and the claim needs no new jurisdictional support[.]” USCIT R.
8(a)(1); Fed. R. Civ. P. 8(a)(1). In the Amended Complaint, Plaintiffs asserted that
the Court has jurisdiction over this matter under 28 U.S.C. § 1581(c). Am. Compl. Consol. Court No. 19-00204 Page 22
¶ 2; see also Bioparques II, 31 F.4th at 1348. Plaintiff-Intervenors have not alleged
a new theory of jurisdiction for its claims. See Pl.-Intervs.’ Part. Consent Mot.
Interv. Out Time; Pl.-Intervs.’ Br.
28 U.S.C. § 1581(c) provides the U.S. Court of International Trade with
exclusive jurisdiction over civil actions commenced under 19 U.S.C. § 1516a to
challenge certain final decisions reached in antidumping duty proceedings. 28
U.S.C. § 1581(c); see also 19 U.S.C. § 1516a. Though the final results of a new
shipper review fall within the scope of Section 1516a, the statute does not
expressly grant subject matter jurisdiction over actions contesting Commerce’s
decision not to initiate or conduct a new shipper review. 19 U.S.C.
§ 1615a(a)(2)(B)(iii); see Qingdao Barry Flooring Co. v. United States, 40 CIT __,
__, 190 F. Supp. 3d 1274, 1276 (2016) (“[N]othing in 19 U.S.C. § 1516a or 28
U.S.C. § 1581(c) grants the court subject matter jurisdiction of a claim that
Commerce unlawfully has refused to initiate or refused to conduct a new shipper
review.”).
The Court concludes that Plaintiff-Intervenors’ challenge to Commerce’s
denial to initiate a changed circumstances review cannot be brought under 28
U.S.C. § 1581(c), though subject matter jurisdiction could exist within the Court’s
residual jurisdiction under 28 U.S.C. § 1581(i). See 28 U.S.C. § 1581(i). Section
1581(i) provides, in relevant part: “the Court of International Trade shall have Consol. Court No. 19-00204 Page 23
exclusive jurisdiction of any civil action commenced against the United States, its
agencies, or its officers, that arises out of any law of the United States providing
for . . . administration and enforcement with respect to the matters referred to in
subparagraphs (A) through (C) of this paragraph and subsections (a)–(h) of this
section.” 28 U.S.C. § 1581(i)(1)(D). Jurisdiction under subsection (i) “may not be
invoked when jurisdiction under another subsection of [Section] 1581 is or could
have been available, unless the remedy provided under that other subsection would
be manifestly inadequate.” Ford Motor Co. v. United States, 688 F.3d 1319, 1323
(Fed. Cir. 2012) (internal quotation omitted). Jurisdiction is not available under 28
U.S.C. § 1581(c), but the Court could assert jurisdiction over Plaintiff-Intervenors’
claims under 28 U.S.C. § 1581(i). See Tr. Bankr. North American Rubber Thread
Co. v. United States, 31 CIT 2040, 2042, 533 F. Supp. 2d 1290, 1293 (2007);
Qingdao Barry Flooring Co., 40 CIT at __, 190 F. Supp. 3d at 1276.
Because Plaintiff-Intervenors did not file their own complaint in this case
alleging an action under 28 U.S.C. § 1581(i), however, and instead are relying on
the Amended Complaint filed by Plaintiffs under 28 U.S.C. § 1581(c), Plaintiff-
Intervenors have not established subject matter jurisdiction to challenge
Commerce’s decision to not initiate or conduct a new shipper review under 28
U.S.C. § 1581(i). Moreover, no antidumping duty order has yet been issued, and
Plaintiff-Intervenors will be able to request a new shipper review or changed Consol. Court No. 19-00204 Page 24
circumstances review if and when an antidumping duty order is issued. Plaintiff-
Intervenors’ claims in this action will be dismissed. USCIT R. 12(b)(1); Fed. R.
Civ. P. 12(b)(1).
B. Standing
Defendant contends that Plaintiff-Intervenors lack Article III standing to
challenge Commerce’s denial of a changed circumstance or new shipper review
because the relief is distinct from that sought by Plaintiffs and Consolidated
Plaintiffs. Def.’s Br. at 6–7. Defendant further argues that Plaintiff-Intervenors’
claims impermissibly expand the original claims. Id. at 7–8.
An intervenor must establish Article III standing in order to pursue a relief
that is different from the relief sought by the parties with standing. Town of
Chester v. Laroe Estates, Inc., 581 U.S. 433, 440 (2017). “When the movant for
intervention seeks to intervene on the side of the plaintiff, the motion must state the
movant’s standing, and must state the administrative determination to be reviewed
and the issues that the intervenor desires to litigate.” USCIT Rule 24(c)(2). The
Court granted Plaintiff-Intervenors’ motion to intervene on the belief that Plaintiff-
Intervenors’ claims related to the information they provided during the remand that
was relied upon by Commerce in reaching the Remand Redetermination.
Bioparques V, 48 CIT at __, 745 F. Supp. 3d at 1325–26. The arguments raised in
Plaintiff-Intervenors’ comments opposing the Remand Redetermination are not Consol. Court No. 19-00204 Page 25
related to Commerce’s use of the information provided during remand or the
arguments raised by other Parties with standing. See Pl.-Intervs.’ Br.; Am. Compl.
Plaintiff-Intervenors must independently establish standing to bring their claims.
Town of Chester, 581 U.S. at 440.
In order to establish Article III standing, a party must demonstrate: (1) that it
has suffered “an injury in fact,” that is “an invasion of a legally protected interest
which is (a) concrete and particularized, and (b) actual or imminent, not
conjectural or hypothetical;” (2) a “causal connection between the injury and the
conduct complained of;” and (3) “it must be likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision.” Lujan v.
Defs. of Wildlife, 504 U.S. 555, 561–62 (1992) (internal quotations and citations
omitted). Plaintiff-Intervenors suggest that they have suffered an injury by not
receiving an individually calculated dumping margin. Pl.-Intervs.’ Br. at 4–7.
Other than general statements regarding how the tomato industry has changed and
how Plaintiff-Intervenors and some of their products did not exist at the time of the
initial investigation, Plaintiff-Intervenors have not demonstrated that application of
the all-others rate applicable to them has resulted in an injury. In fact, only one of
the individual calculated average-dumping margins established in the Remand
Redetermination is less than the all-others rate. Remand Redetermination at 36.
The Court also notes that no antidumping duties have been assessed since the 2019 Consol. Court No. 19-00204 Page 26
Suspension Agreement came into effect. Bioparques II, 31 F.4th at 1338 (“An
antidumping duty order based on the final determination has not issued, however,
because the 2019 Agreement remains in effect.”). Furthermore, Plaintiff-
Intervenors are not precluded from seeking a new shipper review or changed
circumstances review if an antidumping duty order is issued. 19 U.S.C.
§§ 1675(a)(2)(B)(i), (b)(1)(A). Plaintiff-Intervenors have not demonstrated that
they have suffered an injury in this case.
Plaintiff-Intervenors have also failed to demonstrate that a favorable
decision of the Court would cure any injury they might have suffered. Plaintiff-
Intervenors are asking the Court to direct Commerce to calculate individual
dumping margins for companies that did not exist at the time of the initial
investigation. Pl.-Intervs.’ Br. at 7. This relief is antithetical to the Court’s prior
holding in Bioparques IV that Commerce was required by statute to resume the
initial investigation and base its determination on the original mandatory
respondents and data collected. See Bioparques IV, 48 CIT at __, 698 F. Supp. 3d
at 1276. Because Plaintiff-Intervenors have not shown a cognizable injury that is
likely to be redressed by a favorable decision of the Court, standing has not been
established for Plaintiff-Intervenors’ claims. Consol. Court No. 19-00204 Page 27
CONCLUSION
For the foregoing reasons, the Court sustains Commerce’s Remand
Redetermination as supported by substantial evidence and in accordance with law.
Accordingly, it is hereby
ORDERED that Commerce’s Redetermination Pursuant to Court Remand
Order, ECF Nos. 120, 121, determining weighted-average dumping margins based
on the 1995–1996 data and that Plaintiff-Intervenors are not entitled to a new
shipper or changed circumstances review, is sustained.
Judgment will be entered accordingly.
/s/ Jennifer Choe-Groves Jennifer Choe-Groves, Judge
Dated: April 17, 2025 New York, New York