US Says Exporter Waived Various Claims in Suit on AD Investigation Under Suspension Agreement
Tomato exporter Bioparques de Occidente failed to address many of its claims before the Commerce Department in a case on the agency's decision to resume an antidumping duty investigation after the termination of a suspension agreement, the government said in a reply brief. Issuing the brief after the trade court said Bioparques has the jurisdiction to challenge the decision, the U.S. addressed the remainder of the exporter's eight claims, arguing that Commerce's continuation of the investigation was "properly conducted" (Bioparques de Occidente v. United States, CIT # 19-00204).
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The AD investigation on tomatoes from Mexico was launched in 1996 and was subject to four different suspension agreements through 2013. In 2019, the agency withdrew from the 2013 suspension agreement, though a later agreement was reached. At that time, Commerce issued its final determination in the investigation, finding that the tomatoes were being dumped into the U.S. market. The plaintiffs launched three separate CIT cases, which were consolidated into one action under Bioparques.
In its brief, the government said that Bioparques waived multiple arguments, including challenges to Commerce's authority to resume the investigation, since they were not placed in the opening brief. Nevertheless, the agency properly continued the investigation since it received a timely request to continue the proceeding within 20 days after publishing the notice of the 2019 suspension agreement, the U.S. said.
Bioparques claimed that the suspension notice referenced in the statute refers to the first suspension notice of an investigation, the one in 1996 in this case, and cannot reference a later notice of suspension of a resumed investigation. The result would mean the 2019 request was "23 years too late." To this, the government said the "statute does not use the words 'first,' or 'subsequent,' or otherwise specifically refer to situations like this one where there has been a series of agreements that suspended the same investigation."
The government added that Commerce did not start an "entirely new investigation" when it resumed the previously suspended proceeding. Bioparques said that the investigation was illegal since it was a new one and not a resumption of the original investigation. "However, Bioparques does not and cannot point to a statement on the record by Commerce or any other record evidence that the agency initiated or conducted a 'new' investigation, rather than simply resuming and later continuing its original investigation," the brief said.
Addressing the other issues raised by the exporter, the government said Commerce properly compared normal value to export price on an annual basis instead of a monthly basis, legally used the Cohen's d test to root out "masked" dumping, appropriately used an average-to-transaction comparison to address the masked dumping, and legally included certain sales in the normal value calculation.