Bioparques de Occidente, S.A. de C.V. v. United States
| Decision Date | 14 April 2022 |
| Docket Number | 2020-2267,2020-2265,2020-2266 |
| Parties | BIOPARQUES DE OCCIDENTE, S.A. DE C.V., AGRICOLA LA PRIMAVERA, S.A. DE C.V., KALIROY FRESH LLC, Plaintiffs-Appellants v. UNITED STATES, FLORIDA TOMATO EXCHANGE, Defendants-Appellees |
| Court | U.S. Court of Appeals — Federal Circuit |
Appeals from the United States Court of International Trade in Nos. 1:19-cv-00204-JCG, 1:19-cv-00210-JCG 1:20-cv-00035-JCG, Judge Jennifer Choe-Groves.
Jeffrey M. Winton, Winton & Chapman PLLC, Washington, DC argued for plaintiffs-appellants. Also represented by Michael John Chapman, Jooyoun Jeong, Vi Mai. Also argued by James P. Durling, Curtis, Mallet-Prevost, Colt & Mosle LLP, Washington, DC; Devin S. Sikes, Akin Gump Strauss Hauer & Feld LLP, Washington, DC.
Douglas Glenn Edelschick, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee United States. Also argued by Robert R. Kiepura. Also represented by Brian M. Boynton, Patricia M. McCarthy, 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, Washington, DC, argued for defendant-appellee The Florida Tomato Exchange. Also represented by James R. Cannon, Jr., Ulrika K. Swanson, Jonathan M. Zielinski.
Before Dyk, Prost, and Taranto, Circuit Judges.
In 1996, the U.S. Department of Commerce initiated an investigation into whether fresh tomatoes from Mexico were being sold in the United States at less than fair value. After the International Trade Commission (ITC) made a preliminary determination of injury to a domestic industry from the sale of such tomatoes, Commerce made a preliminary determination that the tomatoes were being, or were likely to be, sold in the U.S. at less than fair value. On the day Commerce issued its preliminary dumping determination, exporters accounting for substantially all exports of fresh tomatoes from Mexico ("the Mexican parties") signed an agreement with Commerce to suspend the investigation. Pursuant to that 1996 Agreement, and 2002, 2008, and 2013 successor agreements, the signatories were required, among other things, to sell their products in the U.S. at minimum "reference" prices.
In the spring of 2019, Commerce withdrew from the 2013 Agreement, as authorized by its terms, and resumed the investigation. But the parties soon executed a new agreement (the 2019 Agreement), which suspended the investigation, set higher minimum reference prices, required (generally speaking) that the dumping margin of each signatory's individual entries not exceed 15% of the dumping margin of its entries examined during the investigation, and provided for compliance reviews based on regular submissions of information from the Mexican parties. Shortly after the execution of the 2019 Agreement, however, domestic tomato producers asked Commerce to continue the investigation, which it did, as required by statute upon receipt of such requests. Commerce then reached a final determination that fresh tomatoes from Mexico were being, or were likely to be, sold in the U.S. at less than fair value, and it calculated estimated dumping margins, and the ITC made a final determination of material injury to a domestic industry. An antidumping duty order based on the final determination has not issued, however, because the 2019 Agreement remains in effect.
The present appeals arise from three complaints filed in the U.S. Court of International Trade (Trade Court or USCIT) challenging Commerce's termination of the 2013 Agreement, continuation of the investigation, and final determination. Each of the three complaints was filed jointly by the firms we will call "Bioparques" collectively-Bioparques de Occidente, S.A. de C.V. and Agricola La Primavera, S.A. de C.V., which are Mexican exporters of fresh tomatoes and signatories to the 2019 Agreement, and Kaliroy Fresh LLC, which is a U.S. importer of fresh tomatoes from Mexico. Each complaint asserted a different statutory basis of jurisdiction. The Trade Court dismissed all claims under USCIT Rule 12(b)(1) for want of the case or controversy required by Article III of the Constitution. It held that (a) Bioparques's claims regarding the termination of the 2013 Agreement became moot upon the execution of the 2019 Agreement and (b) Bioparques's claims regarding the final determination in the continued investigation were not ripe because Bioparques suffered no concrete injury until an antidumping duty order based on that determination issued, which had not occurred and could not occur while the 2019 Agreement was in force. Bioparques de Occidente, S.A. de C.V. v. United States, 470 F.Supp.3d 1366 (Ct. Int'l Trade 2020). Bioparques appeals.
We hold as follows. As to Bioparques's challenge to the termination of the 2013 Agreement, we rely on the opinion we issue today in Confederacion de Asociaciones Agricolas del Estado de Sinaloa, A.C. v. United States, No. 2020-2232 to conclude that Bioparques has stated no plausible challenge to that termination, so this challenge must be dismissed under USCIT Rule 12(b)(6). As to Bioparques's challenges to Commerce's final determination in the continued investigation (both the results and the process), we draw two conclusions. First, we conclude that this challenge presents a case or controversy that is justiciable under Article III of the U.S. Constitution. Second, we conclude that the Tariff Act of 1930 provides jurisdiction for the Trade Court to review the final determination at issue here even before an antidumping duty order has been published. We remand to the Trade Court to address the merits of Bioparques's claims regarding the final determination.
The Tariff Act of 1930 allows Commerce to initiate an investigation to determine whether imported merchandise is being sold in the U.S. at less than fair value (dumped). Tariff Act of 1930, Pub. L. No. 71-361, 46 Stat. 590 (codified as amended in scattered sections of 19 U.S.C.). After Commerce initiates an investigation into some defined class of imported goods, the ITC is to determine whether there is a "reasonable indication" that a U.S industry is materially injured or threatened with material injury, or the establishment of an industry in the U.S. is materially retarded, due to non-negligible amounts of the imports. 19 U.S.C. § 1673b(a)(1).[1] If the ITC's determination is affirmative, Commerce is to make a preliminary determination of whether there is a "reasonable basis to believe or suspect" that the subject merchandise is been sold, or is likely to be sold, at less than fair value. § 1673b(b)(1)(A). If Commerce's preliminary determination is also affirmative, Commerce then is to calculate the estimated weighted average dumping margins, i.e., the amount by which the normal value (roughly, home-country value) of the merchandise exceeds the export price (roughly, U.S. price), and it orders the posting of a cash deposit or bond for each entry based on those margins, as well as the suspension of liquidation (the final computation of duties) of entries subject to the determination. § 1673b(d)(1), (2).
Ordinarily, Commerce then continues the investigation and, within 75 days of the preliminary determination, makes a final determination of whether the merchandise is being, or is likely to be, sold in the U.S. at less than fair value. § 1673d(a)(1). If it finds such sales, it calculates estimated weighted average dumping margins for each exporter individually investigated and an estimated all-others rate for those not individually investigated. § 1673d(c)(1)(B). The ITC then makes its final injury determination. § 1673d(b)(1). If both determinations are affirmative, Commerce issues an antidumping duty order that directs customs officers to assess an antidumping duty equal to the margins calculated in the final determination. § 1673d(c)(2); § 1673e(a).
These appeals concern a congressionally authorized departure from that ordinary course of proceedings. If Commerce determines that "extraordinary circumstances" are present, it may suspend an investigation upon the execution of a suspension agreement, pursuant to § 1673c(c), with "substantially all" exporters of the subject merchandise (defined as not less than 85% of exporters by value or volume, see § 1673c(c)(1); 19 C.F.R. § 351.208(c)). The agreement must eliminate the injurious effects of the sales at issue and ensure that the amount by which the normal value of the merchandise exceeds the export price does not exceed 15% of the dumping margin of the less-than-fair-value entries examined during the investigation. § 1673c(c)(1)(B). Once the agreement is executed, Commerce releases the cash deposits or bonds and terminates the suspension of liquidation. § 1673c(f). Within 20 days of the publication of a suspension agreement, however, if continuation of the investigation is requested either by "an exporter or exporters accounting for a significant proportion of exports to the United States of the subject merchandise" or by another designated "interested party" (, any of various domestic-industry entities), Commerce "shall continue the investigation" and proceed toward a final determination. § 1673c(g).[2] But even if the final determination in the continued investigation is affirmative, Commerce may not issue an antidumping duty order as long as the suspension agreement remains in force and continues to meet statutory requirements. § 1673c(f)(3)(B).
Commerce initiated an investigation in April 1996 to determine whether fresh tomatoes from Mexico were being sold in the U.S. at less than fair value. Initiation of Antidumping Duty...
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