Red Sun Farms v. United States

• Court: Court of Appeals for the Federal Circuit
• Decided: April 14, 2022
• Docket: 20-2230
• Status: Published

Opinion

Case: 20-2230 Document: 71 Page: 1 Filed: 04/14/2022

United States Court of Appeals for the Federal Circuit ______________________

RED SUN FARMS, Plaintiff-Appellant

v.

UNITED STATES, FLORIDA TOMATO EXCHANGE, Defendants-Appellees ______________________

2020-2230 ______________________

Appeal from the United States Court of International Trade in No. 1:19-cv-00205-JCG, Judge Jennifer Choe- Groves. ______________________

Decided: April 14, 2022 ______________________

JAMES P. DURLING, Curtis, Mallet-Prevost, Colt & Mosle LLP, Washington, DC, argued for plaintiff-appel- lant. Also represented by JAMES BEATY, DANIEL L. PORTER. Also argued by DEVIN S. SIKES, Akin Gump Strauss Hauer & Feld LLP, Washington, DC; JEFFREY M. WINTON, Winton & Chapman, PLLC, Washington, DC.

DOUGLAS GLENN EDELSCHICK, Commercial Litigation Branch, Civil Division, United States Department of Jus- tice, Washington, DC, argued for defendant-appellee United States. Also argued by ROBERT K. KIEPURA. Also represented by BRIAN M. BOYNTON, JEANNE DAVIDSON, Case: 20-2230 Document: 71 Page: 2 Filed: 04/14/2022

FRANKLIN E. WHITE, JR.; EMMA T. HUNTER, Office of the Chief Counsel for Trade Enforcement & Compliance, United States Department of Commerce, Washington, DC.

MARY JANE ALVES, Cassidy Levy Kent USA LLP, Wash- ington, DC, argued for defendant-appellee Florida Tomato Exchange. Also represented by JAMES R. CANNON, JR., ULRIKA K. SWANSON, JONATHAN M. ZIELINSKI. ______________________

Before DYK, PROST, and TARANTO, Circuit Judges. Opinion for the Court filed by Circuit Judge TARANTO. Opinion dissenting-in-part and concurring-in-part filed by Circuit Judge DYK. TARANTO, Circuit Judge. This is one of several appeals argued together to this panel, all arising out of an antidumping duty investigation to determine whether fresh Mexican tomatoes were being imported into the United States and sold at less than fair value. The history of the proceedings is described in our two accompanying precedential opinions in Confederacion de Asociaciones Agricolas del Estado de Sinaloa, A.C. v. United States, No. 2020-2232, and Bioparques de Occidente v. United States, No. 2020-2265. In this case, we reverse and remand. I A “Red Sun Farms” is the trade name under which vari- ous identified entities do business. These entities are “U.S. producers of fresh tomatoes grown in the United States, U.S. importers and resellers of fresh tomatoes from Mexico, and foreign producers and exporters of fresh tomatoes from Mexico.” Appellant’s Br. 3; see also J.A. 21 (summons). Case: 20-2230 Document: 71 Page: 3 Filed: 04/14/2022

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The complaint in this case was filed against the United States in the Court of International Trade (“Trade Court”) on December 26, 2019. It begins: “1. Plaintiff Red Sun Farms (Naturbell SPR DE RL, San Miguel Red Sun Farms SPR DE RL DE CV, Agricola El Rosal SA DE, Jem D Inter- national Michigan Inc., and Red Sun Farms Virginia LLC, collectively d/b/a Red Sun Farms) by and through its coun- sel, states the following claims against the Defendant, the United States.” J.A. 24. The caption on the complaint is simply “Red Sun Farms, Plaintiff, v. United States, De- fendant.” Id. After beginning with the identification of “Red Sun Farms” with the above quote, the complaint thereafter uses the singular “Plaintiff.” See J.A. 24–36. Like the Trade Court, we will follow that usage—which, however, raises issues to be addressed on remand, as we will discuss. The complaint followed the filing, on November 25, 2019, of the summons that commenced the Trade Court case. J.A. 21–23. The summons includes the same caption and formulation relating “Red Sun Farms” to five identified entities as does the later complaint, but the summons, while twice referring to “Plaintiff” (singular), also twice re- fers to “Plaintiffs” (plural). J.A. 21. The corporate disclo- sure statement filed with the summons states: “Plaintiff and its member companies are not publicly-owned.” Form 13 Corporate Disclosure Statement, Red Sun Farms v. United States, No. 1:19-cv-00205 (Ct. Int’l Trade Nov. 25, 2019), ECF No. 3. In the Trade Court, the government flagged the issue of who precisely brought this action. In its March 2020 mo- tion to dismiss, the government observed, with respect to the five identified entities doing business as “Red Sun Farms,” that “[i]t is unclear whether all of these parties possess standing or can be considered real parties in inter- est” and reserved its right to raise additional arguments on the subject. J.A. 62 n.1. In April 2020, in a discovery filing, Case: 20-2230 Document: 71 Page: 4 Filed: 04/14/2022

the government noted the varying singular/plural usage by Red Sun Farms and stated that “‘Plaintiff’ Red Sun Farms actually consists of several companies, which are” the five identified in the quote above. J.A. 180 n.1. We note that, in this court, Red Sun Farms, in its certificate of interest (Form 9 in this court), used the same formulation quoted above from the complaint, i.e., “Red Sun Farms ([the iden- tified five entities], collectively d/b/a Red Sun Farms),” to designate “all entities represented by the undersigned counsel in this case.” Certificate of Interest, Red Sun Farms v. United States, No. 2020-2230 (Fed. Cir. Sept. 16, 2020), ECF No. 3. B On the merits, Red Sun Farms presented seven claims in the complaint. All claims challenge aspects of the final determination resulting from Commerce’s continued inves- tigation. See Fresh Tomatoes from Mexico: Final Determi- nation of Sales at Less than Fair Value, 84 Fed. Reg. 57,401 (Oct. 25, 2019) (Final Determination). The claims fall into three categories: (1) that Commerce improperly selected new respondents in its continued investigation; (2) that Commerce committed timing and procedural errors in reaching its final determination; and (3) that Commerce utilized flawed methodologies to calculate dumping mar- gins, the all-others rate, and cash deposit rates in the final determination. Red Sun Farms alleged in the complaint that the Trade Court had jurisdiction under 28 U.S.C. § 1581(c) because Red Sun Farms challenged a final deter- mination resulting from a continued investigation under 19 U.S.C. § 1516a(a)(2)(B)(iv). The government moved to dismiss on grounds of ripe- ness, lack of subject matter jurisdiction, and failure to state a claim upon which relief can be granted. The Trade Court granted the government’s motion and dismissed the com- plaint with prejudice on ripeness grounds because the 2019 Case: 20-2230 Document: 71 Page: 5 Filed: 04/14/2022

RED SUN FARMS v. US 5

suspension agreement remained in place, and there had been accordingly no final antidumping order issued based on the Final Determination. Red Sun Farms v. United States, 469 F. Supp. 3d 1403, 1408–10 (Ct. Int’l Trade 2020). Red Sun Farms appeals. We have jurisdiction pur- suant to 28 U.S.C. § 1295(a)(5). II Like the appellants in Bioparques de Occidente v. United States, No. 2020-2265 [hereafter “Bioparques”], Red Sun Farms challenges the Final Determination published by the Department of Commerce on October 25, 2019. The Trade Court held in this case, as it did in the Bioparques case, that these challenges were premature because no fi- nal antidumping order had issued. Today we reverse that holding in Bioparques, and we do the same in this case, re- lying on our opinion in Bioparques—which applies because Red Sun Farms’ interests include the present, concrete in- terests of exporters bound by the suspension agreement at the center of Bioparques. Red Sun Farms’ claims are not premature. As to statutory jurisdiction, this case differs from Bi- oparques. There, we hold that jurisdiction exists based on §§ 1516a(g)(3)(A)(i) and 1516a(a)(2)(B)(i); and we do not reach the issue of jurisdiction based on §§ 1516a(a)(2)(A)(i) and 1516a(a)(2)(B)(iv). Here, Red Sun Farms invokes only the latter basis of statutory jurisdiction. We hold, in agree- ment with Red Sun Farms, that the Trade Court has stat- utory jurisdiction on that basis. A Under § 1516a(a)(2)(A)(i)(I), “[w]ithin thirty days after . . . the date of publication in the Federal Register of . . . notice of any determination described in clause . . . (iv) . . . of subparagraph (B),” “an interested party who is a party to the proceeding in connection with which the matter Case: 20-2230 Document: 71 Page: 6 Filed: 04/14/2022

arises may commence an action” in the Trade Court by fil- ing a summons, to be followed by a complaint within 30 days thereafter (emphasis added). Clause (iv) of subpara- graph (B) reads: (B) Reviewable determinations The determinations which may be contested under subparagraph (A) are as follows: *** (iv) A determination by the administering author- ity, under section 1671c or 1673c of this title, to suspend an antidumping duty or a countervailing duty investigation, including any final determina- tion resulting from a continued investigation which changes the size of the dumping margin or net countervailable subsidy calculated, or the reason- ing underlying such calculations, at the time the suspension agreement was concluded. § 1516a(a)(2)(B)(iv) [hereafter “B(iv)”]. As explained in Bi- oparques, § 1673c covers agreements to suspend an inves- tigation, § 1673c(c); continued investigations, § 1673c(f)(3); and procedures relating to final determinations in those continued investigations, id. As also explained in Bi- oparques, Congress gave not only domestic-industry enti- ties but also the exporter signatories (if they are significant enough together) the right to demand a continued investi- gation after publication of a suspension agreement. § 1673c(g). See Bioparques, slip op. at 17. The government agrees that Commerce’s Final Deter- mination in the present matter is a “final determination resulting from a continued investigation which changes the size of the dumping margin.” Oral Arg. at 1:22:40–1:23:02; see also Notice of Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determi- nation: Fresh Tomatoes From Mexico, 61 Fed. Reg. 56,608, Case: 20-2230 Document: 71 Page: 7 Filed: 04/14/2022

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56,615 (Nov. 1, 1996) (Preliminary Determination) (setting preliminary dumping margins); Final Determination, 84 Fed. Reg. at 57,402 (changing the size of those margins). And the government does not dispute that Red Sun Farms served its summons within 30 days of publication of the Fi- nal Determination and served its complaint within 30 days thereafter. The government nevertheless disputes the ap- plicability of B(iv). The government’s argument is that any challenge un- der B(iv) must include a timely challenge to the suspension agreement itself—to a “determination by” Commerce “to suspend an antidumping duty . . . investigation.” § 1516a(a)(2)(B)(iv). According to the government, even if the challenger’s only grievance is with the final determina- tion in the continued investigation, it cannot challenge that final determination under B(iv) unless it filed an action within 30 days of the publication of the suspension agree- ment at issue. It is not enough, says the government, that the challenger filed its B(iv) action within 30 days of the publication of the final determination that follows that agreement. In this matter, it is undisputed that Red Sun Farms did not file an action within 30 days of publication of the 2019 Agreement. We have not ruled on the proper interpretation of B(iv), so the government bases its argument on Usinas Siderúr- gicas de Minas Gerais, S/A v. United States, 201 F. Supp. 2d 1304 (Ct. Int’l Trade 2002). There, the Trade Court con- cluded that B(iv) covers only actions that allege that the suspension agreement should not have been executed or that it is defective in light of a final determination’s alter- ation of margins or reasoning underlying the agreement, and it determined that B(iv) actions must be brought within 30 days of publication of the suspension agreement. Id. at 1312. The Usinas court reasoned that the statute, through its “including” language, “close[ly] reference[s]” the underlying suspension agreement, so that a challenge Case: 20-2230 Document: 71 Page: 8 Filed: 04/14/2022

to the final determination can be brought only as part of a challenge to the suspension agreement itself. Id. Usinas is not precedent for this court, and we conclude that the Usinas court read B(iv) too narrowly. A final de- termination in a continued investigation that changes the dumping margins after the conclusion of the suspension agreement, like the Final Determination here, is a “deter- mination described in clause . . . (iv) . . . of subparagraph (B).” § 1516a(a)(2)(A)(i). And “any” such determination may be reviewed by filing a summons within 30 days of that determination’s publication (followed by a complaint within 30 days thereafter). Id. The language of subpara- graph (A) directly applies to these types of determinations, in which Commerce’s calculation of dumping margins has changed, creating a different set of circumstances from those on which the suspension agreement was based. The language of B(iv), on which the Usinas court relied, does not support a contrary conclusion. The court in Usi- nas, agreeing with the government, ruled that the “includ- ing” term could have (and therefore had to be given) a meaning under which the words following “including” iden- tify a component part of what is identified in the words pre- ceding “including.” Usinas, 201 F. Supp. 2d at 1310–13 (using “illustrative,” “component part,” and similar terms to identify this interpretation). But that meaning makes no linguistic sense in B(iv). A final determination in a con- tinued investigation is not naturally described as a part of a “determination . . . to suspend”; they are not even made at the same time or in the same Commerce document or announcement. Indeed, the particular final determina- tions identified in B(iv) qualify only if they embody changes in the premises of the earlier-made “determination . . . to suspend.” A whole/part meaning makes no sense in B(iv), unlike in B(i) or B(ii), which refer to a final affirmative de- termination as including a negative “part” (and vice versa) Case: 20-2230 Document: 71 Page: 9 Filed: 04/14/2022

RED SUN FARMS v. US 9

of the single Commerce announcement, with no gap in time of publication. As the court in Usinas recognized, “including” in legal settings can have an “expansive” meaning, 201 F. Supp. 2d at 1311, under which a provision as a whole encompasses both what comes before and what comes after the word. Here, such a meaning is supported by the language with which subparagraph B begins: “The determinations which may be contested under subparagraph (A) clause are as fol- lows . . . .” The “including” phrase of B(iv) is naturally un- derstood as identifying something as being “includ[ed]” among the “determinations which may be contested under subparagraph (A),” not (unnaturally) as “includ[ed]” within the “determination . . . to suspend.” Accordingly, not only the text of subparagraph (A) but also the text of subpara- graph (B) supports Red Sun Farms’ interpretation. This interpretation also fits with other pertinent as- pects of the statute. See, e.g., Merit Mgmt. Group, LP v. FTI Consulting, Inc., 138 S. Ct. 883, 892–93 (2018) (consid- ering “[t]he language of [the provision at issue], the specific context in which that language is used, and the broader statutory structure”). Congress expressly authorized both domestic-industry entities and exporter signatories (the latter if significant enough together) to trigger a continued investigation, § 1673c(g), and the disputed “including” clause of B(iv) specifically refers to final determinations re- sulting from such continued investigations that change the premises existing when the suspension agreement was ex- ecuted. The B(iv) provision thus clearly contemplates a scenario (among others) in which exporter signatories, hav- ing just signed the suspension agreement, are interested only in obtaining a correct final determination—whether to give them a reason to withdraw from the agreement or, conversely, to avoid termination of a satisfactory suspen- sion agreement because it is deemed not to adhere to Case: 20-2230 Document: 71 Page: 10 Filed: 04/14/2022

statutory requirements based on a new incorrect final de- termination (e.g., of higher dumping margins). The government argues that the Mexican signatories could have challenged the suspension agreement within 30 days of its publication and that such a challenge would have served as a placeholder, allowing them to amend their complaints later to challenge a final determination in the continued investigation once such a final determination was published. Oral Arg. at 1:38:42–1:40:10. But the ques- tion is not what could be done, but what must be done. And not only does the government’s interpretation conflict with the text of the statute, as just discussed, but the govern- ment has not identified any reason why Congress should be understood to have imposed such a placeholder-filing re- quirement when the interested party is not yet aggrieved by anything and will become aggrieved only later if it sees flaws in a final determination that are worth trying to cor- rect through litigation. Nor has the government identified any support in the legislative history; in fact, no party has presented to us any argument based on legislative history. The filing requirement urged by the government also would be an awkward fit with the timing requirements of the statute. The government’s interpretation would re- quire parties that might later want to challenge a final de- termination in a continued investigation—without even knowing the results of that determination—to file a chal- lenge to the suspension agreement within 30 days of the agreement’s publication. Of course, it is conceivable that a final determination might issue within that very brief pe- riod, despite the work needed to resume an investigation that has been suspended and arrive at a final determina- tion. But the government has supplied no sound basis for concluding that Congress was acting on the assumption that a final determination would issue in that period or oth- erwise in time for it to be evaluated before the end of the 30-day period from the publication of the suspension Case: 20-2230 Document: 71 Page: 11 Filed: 04/14/2022

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agreement. Indeed, Congress allowed for 20 days after the publication of a suspension agreement for domestic-indus- try entities or exporter signatories just to file a request for continued investigation, § 1673c(g), and for 75 days after the preliminary determination for Commerce to make a fi- nal determination, which may be further extended to 135 days, see § 1673d(a)(1)–(2). Here, the Final Determination was published on October 25, 2019, which is 31 days after the September 24, 2019 publication of the suspension agreement. Final Determination, 84 Fed. Reg. at 57,402 n.8. Red Sun Farms did not know the results of the contin- ued investigation, let alone have time to evaluate it, within 30 days of the agreement’s publication. We hold that an affirmative final determination in a continued investigation may be challenged under § 1516a(a)(2)(A)(i)(I) within 30 days of the publication of the final determination under § 1516a(a)(2)(B)(iv), which provides the Trade Court jurisdiction under 28 U.S.C. § 1581(c). On the record before us, those provisions support Trade Court jurisdiction over Red Sun Farms’ challenge to the Final Determination. The dismissal must therefore be reversed, and the case remanded. B On remand, the Trade Court should address issues raised by the naming of “Red Sun Farms” as the lone “Plaintiff” in the caption of the case. The summons and complaint use “Red Sun Farms” as the collective litigation name of the group of the five identified domestic and for- eign producers, exporters, and importers, which, the filings assert, use “Red Sun Farms” as their trade name in con- ducting business; but the summons also refers to the five companies as “Plaintiffs.” We note here some issues raised by these facts, and the others recited above. We do not de- cide which ones need to be addressed and resolved on Case: 20-2230 Document: 71 Page: 12 Filed: 04/14/2022

remand, whether other issues need to be addressed and re- solved, and what consequences might follow. One issue is whether the five entities doing business under the Red Sun Farms name are actually already plain- tiffs in this case and should be named in the caption. If so, the question might arise whether some of the five entities (for example, perhaps the domestic producers) might lack standing. If the five entities are not yet parties, a question might arise whether they can be made parties. Another issue is whether Red Sun Farms is itself an entity with legal capacity to sue. USCIT Rule 17(b)(3) states that for non-corporations, capacity to sue is deter- mined “by the law of the appropriate state, except that . . . a partnership or other unincorporated association with no such capacity under that state’s law may sue or be sued in its common name to enforce a substantive right existing under the United States Constitution or laws.” Regarding the first clause, state law appears to differ on use of a trade name when bringing suit. Compare, e.g., America’s Whole- sale Lender v. Pagano, 866 A.2d 698, 700 (Conn. App. Ct. 2005) (“Because the trade name of a legal entity does not have a separate legal existence, a plaintiff bringing an ac- tion solely in a trade name cannot confer jurisdiction on the court.”), with Sam’s Wholesale Club v. Riley, 527 S.E.2d 293, 296 (Ga. Ct. App. 1999) (“A corporation conducting business in a trade name may sue or be sued in [its] trade name.” (quoting Carrier Transicold Div. v. Southeast Ap- praisal Resource Assocs., 504 S.E.2d 25, 26 (Ga. Ct. App. 1998)). If Red Sun Farms lacks capacity to sue under ap- propriate state law, the question arises whether it has ca- pacity to sue under the “except that” clause of USCIT Rule 17(b)(3) as a partnership or other unincorporated associa- tion suing to enforce substantive rights under Title 19 of the U.S. Code. We note, finally, that if capacity to sue is missing, a question could arise about whether the defect is jurisdictional. See generally 6A Charles Alan Wright & Case: 20-2230 Document: 71 Page: 13 Filed: 04/14/2022

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Arthur R. Miller, Federal Practice and Procedure § 1559 (3d ed.). III We reverse the Trade Court’s decision and remand for further proceedings consistent with this opinion and our decision in Bioparques. The parties shall bear their own costs. REVERSED AND REMANDED Case: 20-2230 Document: 71 Page: 14 Filed: 04/14/2022

United States Court of Appeals for the Federal Circuit ______________________

UNITED STATES, FLORIDA TOMATO EXCHANGE, Defendants-Appellees ______________________

Appeal from the United States Court of International Trade in No. 1:19-cv-00205-JCG, Judge Jennifer Choe- Groves. ______________________

DYK, Circuit Judge, concurring-in-part and dissenting-in- part. I join part II.B of the majority opinion, but I respect- fully dissent from the majority’s holding that 19 U.S.C. § 1516a(a)(2)(B)(iv) (“B(iv)”) provides a basis for jurisdic- tion. Subsection B(iv) on its face, in the context of the stat- ute as a whole, and given its history, permits challenges to a final determination resulting from a continued investiga- tion only if the appealing party has previously filed a chal- lenge to the suspension agreement. Both the Trade Court in Usinas Siderúrgicas de Minas Gerais, S/A v. United States, 201 F. Supp. 2d 1304 (Ct. Int’l Trade 2002), which has “expertise in addressing antidumping issues and deals on a daily basis with the practical aspects of trade Case: 20-2230 Document: 71 Page: 15 Filed: 04/14/2022

practice,” Int’l Trading Co. v. United States, 281 F.3d 1268, 1274 (Fed. Cir. 2002), and the government on appeal agree. I Subsection B(iv) was originally enacted in 1979. The Trade Agreements Act of 1979 for the first time permitted Commerce to enter into suspension agreements, see S. Rep. 96-249, at 67–68 (1979), and provided for judicial review of such agreements in subsection B(iv), see Pub. L. No. 96-39, § 1001, 93 Stat. 144, 301 (1979). Congress “narrowly cir- cumscribed” Commerce’s “authority” to enter into suspen- sion agreements, S. Rep. 96-249, at 71, allowing only those agreements that were “in the public interest, [could] be ef- fectively monitored by the United States, and me[t] specific criteria,” id. at 68. In particular, the statute authorized agreements that “eliminate[d] completely the injurious ef- fect of exports to the United States of [the subject] mer- chandise,” but only so long as Commerce could show: (A) the suppression or undercutting of price levels of domestic products by imports of that merchan- dise will be prevented, and (B) for each entry of each exporter the amount by which the estimated foreign market value exceeds the United States price will not exceed 15 percent of the weighted average amount by which the esti- mated foreign market value exceeded the United States price for all less-than-fair-value entries of the exporter examined during the course of the in- vestigation. 19 U.S.C. § 1673c(c)(1)(A), (B). These provisions reflected Congress’s desire to allow Commerce to enter into suspen- sion agreements eliminating the injurious effects of ex- ports—the type of agreement at issue here—only when the agreement remedied price discrimination determined to exist in antidumping proceedings, thus “serv[ing] the inter- est[s] of the public and the domestic industry affected.” S. Rep. 96-249, at 71. Case: 20-2230 Document: 71 Page: 16 Filed: 04/14/2022

To ensure such symmetry, Congress required Com- merce to publish its affirmative preliminary dumping de- termination together with the suspension agreement, making issuance of a preliminary determination prerequi- site to Commerce’s suspension decision. See § 1673c(f)(1)(A) (“If the administering authority deter- mines to suspend an investigation . . . it shall . . . publish notice of [the] suspension . . . and issue an affirmative pre- liminary determination . . . with respect to the subject mer- chandise, unless it has previously issued such a determination in the same investigation.”); see also S. Rep. No. 96-249, at 68 (“Upon accepting an agreement, [Com- merce] would publish notice in the Federal Register of the suspension together with notice of an affirmative prelimi- nary determination, unless such a determination has al- ready been made during an investigation.”). If a suspension agreement were alleged to be incon- sistent with any of the statutory requirements, Congress provided interested parties two routes to challenge the agreement—either in an administrative proceeding before the International Trade Commission (“ITC”), see § 1673c(h)(1), or in the Trade Court under subsection B(iv). Given that the statutory grounds for challenging suspen- sion agreements were failure to remedy discrimination, it appears likely that Congress primarily contemplated chal- lenges to agreements by domestic producers. As originally enacted, subsection B(iv) authorized Trade Court review of suspension agreements by providing: (B) Reviewable determinations The determinations which may be contested under subparagraph (A) are as follows: *** A determination by the administering authority, under section [1671c or 1673c] of this Act, to sus- pend an antidumping duty or a countervailing duty investigation. Case: 20-2230 Document: 71 Page: 17 Filed: 04/14/2022

93 Stat. at 301. The statute was amended in 1984 to incorporate the underlined language: (B) Reviewable determinations The determinations which may be contested under subparagraph (A) are as follows: *** (iv) A determination by the administering author- ity, under section [1671c or 1673c] of this title, to suspend an antidumping duty or a countervailing duty investigation, including any final determina- tion resulting from a continued investigation which changes the size of the dumping margin or net sub- sidy calculated, or the reasoning underlying such calculations, at the time the suspension agreement was concluded. Pub. L. No. 98-573, § 623, 98 Stat. 2948, 3041 (1984) (em- phasis added). II The genesis of the 1984 amendment is clear enough. Subsection B(iv) as originally enacted did not account for the fact that the 1979 version of § 1673c permitted sus- pended investigations to be continued within 20 days of a suspension agreement’s publication at the request of (1) the foreign exporter-subjects, or (2) domestic industries and related labor unions, trade, and business associations, see 93 Stat. at 168; § 1673c(f)(3), (g), and that these final determinations might affect the validity of the suspension agreement. For example, continued investigations and their resulting final determinations could give rise to situ- ations in which a final determination reduced the dumping margin so that the domestic producers’ grounds for chal- lenging the suspension agreement were eliminated, giving Case: 20-2230 Document: 71 Page: 18 Filed: 04/14/2022

rise to a problem that could be resolved by appealing the final determination. Congress accordingly amended subsection B(iv) to per- mit challenges in the same proceeding to the suspension agreement and the final determination, incorporating the “including” language at issue here. The connection be- tween the final determination and the suspension agree- ment is evident from the language of the provision itself. The amendment did not enable the Trade Court’s review of all final determinations—it limited review only to those fi- nal determinations that altered the size of the dumping margins (or reasoning) in effect at the time of the suspen- sion agreement’s execution. It permitted parties to chal- lenge the changes reflected in the final determination, for example a higher or lower dumping margin that might af- fect the validity of the suspension agreement. Since a final determination does not go into effect until it is embodied in an antidumping order, the only purpose of allowing a chal- lenge to the final determination before that order issues is because the final determination could affect the suspension agreement. The Trade Court in Usinas reached the same conclusion: The focus of [subsection B(iv)] is thus on Com- merce’s determination to suspend the investiga- tion. Judicial review . . . is effectively limited to those cases where it is alleged that the assump- tions underlying the suspension determination— i.e., Commerce’s findings in the preliminary deter- mination—have changed so as to (arguably) render some aspect of the suspension determination defec- tive. 201 F. Supp. 2d at 1312. It is difficult to think that subsection B(iv) was de- signed to enable an importer to challenge the final dump- ing margin so that it could decide whether to withdraw from a suspension agreement. The legislative history Case: 20-2230 Document: 71 Page: 19 Filed: 04/14/2022

discloses no such purpose, and the entire focus of the Con- gressional concern was with agreements that failed to suf- ficiently remedy dumping, not with agreements that were overly restrictive. III Nonetheless, the majority holds that a party with standing to bring a subsection B(iv) action may challenge the final determination resulting from a continued investi- gation without first challenging the suspension agreement itself. Maj. Op. 11. As discussed above, the language and history of the statute contradict any such notion. While it is true that depending on context, the term “including” may be expansive, nothing here suggests that Congress in- tended a reading that would allow freestanding challenges to a final determination unrelated to the suspension agree- ment itself. To the contrary, Congress limited the types of challenges that can be brought to these determinations “by ‘close reference’ to the underlying suspension agreement.” Usinas, 201 F. Supp. 2d at 430. The majority also suggests that the statute’s use of the word “determinations” in describing “[t]he determinations which may be contested under subparagraph (A),” shows that it would be “unnatural[]” to read subsection B(iv)’s in- cluding clause as being limited to the “determination . . . to suspend.” Maj. Op. 9. But the use of the word “determina- tions” in the introductory language simply refers to the multiple determinations listed in subsections B(i)–(viii), it does not show that subsection B(iv) contains multiple inde- pendently-challengeable determinations. So too, nothing in § 1516a(a)(2)(A)’s timing require- ments supports the majority’s approach. The statute re- quires that a party seeking to challenge a suspension agreement file a summons “[w]ithin thirty days after” pub- lication of “notice of any determination described in [sub- section B(iv)],” § 1516a(a)(2)(A), a provision included in the 1979 version of the statute, see 93 Stat. at 301. The Case: 20-2230 Document: 71 Page: 20 Filed: 04/14/2022

majority contends that interpreting subsection B(iv) to re- quire a challenge to the final determination within 30 days of the suspension agreement presents an “awkward fit” be- cause parties seeking to challenge a final determination in a continued investigation will not “know the results of the continued investigation, let alone have time to evaluate it, within 30 days of the agreement’s publication.” Maj. Op. 10, 11. But there is no awkward fit. A final determination reached after a continued investigation necessarily post- dates the publication of a suspension agreement. The stat- ute’s requirement that parties file a summons “[w]ithin thirty days after” publication of “notice of any determina- tion described in [subsection B(iv)]” simply means that an interested party must first challenge the agreement for failing to satisfy the statutory requirements within 30 days of its publication, and may later amend that complaint to challenge the final determination. To be sure, domestic producers or importers might like to know the outcome of the final determination in deciding whether to challenge the suspension agreement. But under either the majority’s reading of the statute or my reading, it is simply too late to challenge the suspension agreement if it has been more than 30 days since the agreement’s publication. For these reasons, I would refrain from holding that the Trade Court has jurisdiction under § 1516a(a)(2)(B)(iv) to hear Red Sun Farms’ claims and would affirm the deci- sion of the Trade Court. 1

1 Having relied on jurisdiction under subsection B(iv), Red Sun Farms cannot amend its complaint to allege jurisdiction under subsection B(i) because it did not timely comply with the NAFTA notice requirements under § 1516a(g)(3)(B).