On September 27, 2018, Senators Marco Rubio (R) and Bill Nelson (D) introduced legislation that would give producers of seasonal fruits and vegetables standing to seek trade remedy relief. The proposed bill would amend the Tariff Act of 1930 to expand the criteria needed for petitioners to have standing to request the imposition of antidumping or countervailing duties.

“Florida growers have been unable to fight back against Mexican trade abuses because U.S. law requires them to prove the abuse occurs year-round instead of just during the winter season when they make most of their sales,” according to a press release from Nelson’s office.  Rubio said — “We must do all we can to ensure a level playing field for Florida’s fruit and vegetable growers.”

Current U.S. law requires trade remedy petitions have either the support of 25 percent of the domestic industry that produces a like product, or at least 50 percent of the support of all the producers of a domestic like product that expressed a support or opposition to a petition. The proposed language would also give standing to a petitioner if “domestic producers or workers who support the petition account for at least 50 percent of the total production of the domestic like product in any State or group of States that accounts for at least 50 percent of total production of the domestic like product during the season or cyclical period of time specified in the petition, determined by averaging production over the 3 seasons or cyclical periods of time preceding the filing of the petition.”

The proposed legislation would also add language to U.S. trade remedy law defining a “core seasonal industry” and allowing it to be considered as the “industry” in trade remedy cases. A core seasonal industry is defined as producers of a raw agricultural domestic like product “that make substantially all of their sales of the domestic like product” eight weeks after the product is harvested, and whose collective output “constitutes a majority of the total production of the domestic like product in any State or group of States that accounts for a major portion of the total production of the domestic like product” during that time frame.

While this legislation is termed as a “seasonality” provision, any modification to the support requirement based upon seasonality would also bolster the regional industry support provisions in that a company alleging injury based upon seasonality could likely ignore the rest of the industry and bolster the support percentage for a  small segment of a larger industry thereby making it easier to meet both domestic support requirements as well as demonstrate injury to a potential domestic industry.  This could have implications within the agricultural sector, but also potentially on industries outside that sector.

For more information, please contact Nithya Nagarajan, Jeffrey S. Neeley, or Stephen Brophy.

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Photo of Nithya Nagarajan Nithya Nagarajan

Nithya’s extensive background in U.S. trade issues spans 25 years and includes various roles in a number of federal government agencies, including the Department of Commerce Department of Justice, and the U.S. Court of International Trade. She assists clients with administrative and regulatory actions before the Department of Commerce, International Trade Commission and U.S. Customs and Border Protection (CBP) and defends clients in appeals before the Court of International Trade, Court of Appeals for the Federal Circuit, NAFTA panels and the World Trade Organization. In addition to her body of U.S. experience, Nithya is also well-versed in international trade issues in China and India.

Photo of Jeffrey Neeley Jeffrey Neeley

Jeffrey has more than 25 years of experience representing private parties in international trade remedies disputes in the U.S. and in foreign jurisdictions. He guides clients in matters including antidumping investigations, countervailing duties, subsidies, intellectual property disputes as well as related customs, export control, and other import/export issues.

Photo of Stephen Brophy Stephen Brophy

Stephen brings more than 20 years of international trade experience to Husch Blackwell. His practice focuses on trade relief and regulation, representing clients in antidumping, countervailing duty and safeguard proceedings. He has assisted clients with these and other related matters before the U.S. Department of Commerce and U.S. International Trade Commission. Stephen is also experienced with customs issues, including tariff classification, valuation and country of origin marking matters.