Bioparques de Occidente, S.A. de C.V. v. United States, No. 20-2265 (Fed. Cir. 2022)
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In 1996, the Commerce Department made a preliminary determination that tomatoes were being, or were likely to be, sold in the U.S. at less than fair value. Exporters of fresh tomatoes from Mexico signed an agreement to sell their products in the U.S. at minimum “reference” prices; Commerce suspended the investigation. In 2019, Commerce withdrew from the Agreement and resumed the investigation. A new agreement suspended the investigation, set higher minimum reference prices, and described the dumping margin. Domestic tomato producers asked Commerce to continue the investigation, which it did, as required by statute. Commerce reached a final determination and calculated estimated dumping margins. An antidumping duty order has not been issued because the 2019 Agreement remains in effect. Three companies challenged Commerce’s termination of the 2013 Agreement, its continuation of the investigation, and final determination.
The Trade Court dismissed, finding that claims regarding the termination of the 2013 Agreement became moot upon the execution of the 2019 Agreement, and claims regarding the final determination in the continued investigation were not ripe because before an antidumping duty order.
The Federal Circuit found no plausible challenge to the termination of the 2013 Agreement. Reversing in part, the court concluded that the challenge to the final determination is justiciable under Article III. The Tariff Act of 1930 provides jurisdiction for the Trade Court to review the final determination even before an antidumping duty order has been published.
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