Petitioner Challenges Tomato Exporter's Intervention Bid in Suit on 1996 AD Proceeding

Tomato exporters led by NS Brands failed to show good cause to untimely intervene in a case on the Commerce Department's 1996 antidumping duty investigation on Mexican tomatoes, petitioner The Florida Tomato Exchange argued on Nov. 8. The petitioner said NS Brands knew when the case started that the parties were challenging Commerce's failure to continue the proceeding and "has shown no reason it could not have timely intervened in this proceeding" (Bioparques de Occidente v. United States, CIT Consol. # 19-00204).

The 1996 investigation was repeatedly suspended from its inception to the present through various suspension deals between the U.S. and Mexico. When the relevant suspension deal ended in 2019, Commerce tried to restart the AD proceeding with new respondents and information, but the Court of International Trade rejected this move (see 2404170046). Most recently, on remand, the agency conducted the investigation on the largest tomato exporters from 1996 (see 2410230045).

Now that the investigation is underway again, NS Brands tried to intervene in the suit on the proceeding -- over four and half years after the deadline to intervene. The proposed intervenor said it couldn't have foreseen the reopening of the record on remand, adding that at the time the case was filed, it thought its interests could be represented by other parties.

The Florida Tomato Exchange replied that NS Brands knew what issues were being litigated at the time the case was filed and that remand to continue the AD investigation was a possibility. Despite this knowledge, NS Brands "decided not to exercise its right to timely intervene, let alone to file its own timely challenge to Commerce’s determination," the brief said.

NS Brands also failed to state the issues it intends to litigate, the brief said. Instead, the company "states vaguely" that it wants to represent its interests before the court as a party to the appeal in line with its participation on remand in the AD investigation. "This obscurity appears intentional: as discussed above, in its comments before Commerce, NatureSweet did not merely respond to Commerce’s requests but rather attempted to revive arguments that it made -- and chose not to timely appeal -- in 2019," the brief said.