Fresh Tomatoes From Mexico

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

ACTION:

Notice of termination of suspension agreement, termination of sunset review, and resumption of antidumping investigation: Fresh Tomatoes from Mexico.

EFFECTIVE DATE

: July 30, 2002

SUMMARY:

On May 31, 2002, Mexican tomato growers/exporters accounting for a significant percentage of all fresh tomatoes imported into the United States from Mexico provided written notice to the Department of Commerce of their withdrawal from the agreement suspending the antidumping investigation on fresh tomatoes from Mexico. Because the suspension agreement no longer covers substantially all imports of fresh tomatoes from Mexico, the Department of Commerce hereby terminates the suspension agreement, terminates the sunset review of the suspended investigation, and resumes the antidumping investigation.

FOR FURTHER INFORMATION CONTACT:

Yang Jin Chun or Mark Ross at (202) 482-5760 or (202) 482-4794, respectively; Office of AD/CVD Enforcement 3, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street & Constitution Avenue, NW., Washington, DC 20230.

SUPPLEMENTARY INFORMATION:

Applicable Statute and Regulations

Unless otherwise indicated, all citations to the statute are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Tariff Act of 1930 (the Act) by the Uruguay Round Agreements Act. In addition, unless otherwise indicated, all citations to Department of Commerce (Department) regulations refer to the regulations codified at 19 CFR part 353 (1996).

Background

On April 18, 1996, the Department initiated an antidumping investigation to determine whether imports of fresh tomatoes from Mexico are being, or are likely to be, sold in the United States at less than fair value (LTFV) (61 FR 18377, April 25, 1996). On May 16, 1996, the United States International Trade Commission (ITC) notified the Department of its affirmative preliminary injury determination.

On October 10, 1996, the Department and Mexican tomato growers/exporters initialed a proposed agreement suspending the antidumping investigation, and on October 28, 1996, the Department preliminarily determined that imports of fresh tomatoes from Mexico are being sold at LTFV in the United States. See Notice of Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination: Fresh Tomatoes from Mexico, 61 FR 56607 (November 1, 1996) (Preliminary Determination). On the same day the Preliminary Determination was signed, the Department and certain growers/exporters of fresh tomatoes from Mexico signed the final suspension agreement. See Suspension of Antidumping Investigation: Fresh Tomatoes from Mexico, 61 FR 56618 (November 1, 1996).

On May 31, 2002, Mexican tomato growers/exporters accounting for a significant percentage of all fresh tomatoes imported into the United States from Mexico submitted to the Department a notice of their withdrawal from the agreement suspending the antidumping investigation on fresh tomatoes from Mexico. Because the suspension agreement would no longer cover substantially all imports of fresh tomatoes from Mexico when the withdrawals became effective, on June 19, 2002, the Department issued a notice of intent to terminate the suspension agreement, intent to terminate the five-year sunset review of the suspended investigation, and intent to resume the antidumping investigation. The Department also invited interested parties to submit comments on whether it should use updated information to complete the antidumping investigation. See Notice of Intent to Terminate Suspension Agreement, Intent to Terminate the Five-Year Sunset Review, Intent to Resume Antidumping Investigation, and Request for Comments on the Use of Updated Information, 67 FR 43278 (June 27, 2002).

Interested parties filed comments and rebuttal comments on the use of updated information. Upon consideration of these comments, we have determined that, for completion of this particular investigation, we will use the original information submitted by the original respondents for the original period of investigation. See July 30, 2002, memorandum entitled “Resumed Antidumping Investigation on Fresh Tomatoes from Mexico; Respondent Selection and Period of Investigation.

On July 3, 2002, the California Tomato Commission filed letters of accession from twenty-four Baja California growers/exporters of fresh tomatoes, asserting that these growers/exporters represent new signatories and, when added to the existing Baja California signatories, represent 94.8 percent of exports of fresh tomatoes from Baja California to the United States. The California Tomato Commission suggested that, with the accession of these Baja California growers/exporters, the Department should reevaluate participation in the suspension agreement and determine whether it now covers substantially all imports of fresh tomatoes from Mexico.

Scope of the Investigation

The products covered by this investigation are all fresh or chilled tomatoes (fresh tomatoes) except for cocktail tomatoes and those tomatoes which are for processing. For purposes of this investigation, cocktail tomatoes are greenhouse-grown tomatoes, generally larger than cherry tomatoes and smaller than Roma or common round tomatoes, and are harvested and packaged on-the-vine for retail sale. For purposes of this investigation, processing is defined to include preserving by any commercial process, such as canning, dehydrating, drying or the addition of chemical substances, or converting the tomato product into juices, sauces or purees. Further, imports of fresh tomatoes for processing are accompanied by an “Importer's Exempt Commodity Form” (FV-6) (within the meaning of 7 CFR 980.501(a)(2) and 980.212(I)). Fresh tomatoes that are imported for cutting up, not further processed (e.g., tomatoes used in the preparation of fresh salsa or salad bars), and not accompanied by an FV-6 form are covered by the scope of this investigation.

All commercially grown tomatoes sold in the United States, both for the fresh market and for processing, are classified as Lycopersicon esculentum. Important commercial varieties of fresh tomatoes include common round, cherry, plum, and pear tomatoes, all of which, with the exception of cocktail tomatoes, are covered by this investigation. Tomatoes imported from Mexico covered by this investigation are classified under the following subheadings of the Harmonized Tariff Schedules of the United States (HTSUS), according to the season of importation: 0702 and 9906.07.01 through 9906.07.09. Although the HTSUS numbers are provided for convenience and customs purposes, our written description of the scope of this proceeding is dispositive.

Period of Investigation

The period of investigation (POI) is March 1, 1995, through February 29, 1996.

Termination of Suspension Agreement

The agreement suspending the antidumping investigation on fresh tomatoes from Mexico is an agreement to eliminate injury under section 734(c) of the Act. Under this type of suspension agreement the Department may suspend an investigation based upon an agreement with exporters accounting for substantially all of the imports of the subject merchandise. The regulations in turn define “substantially all” as exporters (growers and resellers) which have accounted for not less than 85 percent by value or volume of the merchandise during the period for which the Department is measuring dumping in the investigation or such other period that the Secretary considers representative. See 19 CFR 353.18(c).

On May 31, 2002, signatory growers/exporters accounting for a large percentage of all fresh tomatoes imported into the United States from Mexico provided written notice to the Department of their withdrawal from the agreement suspending the antidumping investigation on fresh tomatoes from Mexico. Pursuant to the terms of the suspension agreement, signatory growers/exporters may withdraw from the agreement upon 60 days written notice to the Department. Therefore, these withdrawals from the suspension agreement become effective on July 30, 2002.

On July 3, 2002, the California Tomato Commission filed letters of accession from twenty-four Baja California growers/exporters of fresh tomatoes, asserting that these companies represent new signatories and, when added to the existing Baja California signatories, represent 94.8 percent of the Baja California fresh tomatoes imported into the United States during 2001. With the accession of these Baja California growers/exporters, the California Tomato Commission suggests that the Department reevaluate participation in the suspension agreement and determine whether the suspension agreement covers substantially all imports of fresh tomatoes from Mexico.

To ensure that termination of this suspension agreement is not premature, we have reevaluated participation in the suspension agreement as of July 30, 2002, the date on which the May 31, 2002, withdrawals become effective. Based on our analysis of import data from the U.S. Customs Service (Customs) and given the large percentage of imports which these growers/exporters represent, the signatories remaining in the agreement will not account for substantially all of the imports of the subject merchandise after these withdrawals become effective. See July 30, 2002, memorandum entitled “Analysis of Whether Signatories Account for Substantially All Imports.”

Because the suspension agreement does not cover substantially all imports of fresh tomatoes from Mexico without the participation of the growers/exporters which provided notice of their withdrawal on May 31, 2002, the Department determines that terminating the suspension agreement effective July 30, 2002, is appropriate.

End of the Five-Year Sunset Review

On October 1, 2001, the Department initiated a five-year sunset review of the suspended antidumping investigation on fresh tomatoes from Mexico pursuant to section 751(c) of the Act (66 FR 49926, October 1, 2001). On January 29, 2002, the Department published its preliminary results of the sunset review (67 FR 4237) (Preliminary Results). In the Preliminary Results, the Department preliminarily found that termination of the suspended antidumping duty investigation on fresh tomatoes from Mexico would be likely to lead to the continuation or recurrence of dumping. On May 13, 2002, the Department extended the deadline for the final results of sunset review until August 27, 2002 (67 FR 35099, May 17, 2002).

Because the Department is terminating the suspension agreement, there is no longer a suspended investigation for which to perform a sunset review. Therefore, the Department hereby announces its termination of the sunset review of the suspended LTFV investigation on fresh tomatoes from Mexico, effective July 30, 2002.

Resumption of Antidumping Investigation

With the termination of the suspension agreement on July 30, 2002, in accordance with section 734(i)(1)(B) of the Act, the Department hereby resumes the underlying antidumping investigation. Pursuant to section 734(i)(1)(B) of the Act, the Department resumes the investigation as if it had published the affirmative preliminary determination under section 733(b) of the Act on July 30, 2002.

As explained in the Preliminary Determination at 61 FR 56609, the Department postponed the final determination until the 135th day after the date of the preliminary determination. The Department therefore intends to make its final determination in the resumed investigation by December 12, 2002.

Verification

As provided in section 782(i) of the Act, the Department will verify all information determined to be acceptable for use in making the final determination.

Suspension of Liquidation

The Department will instruct Customs to suspend liquidation of entries of fresh tomatoes from Mexico that are entered, or withdrawn from warehouse, for consumption on or after the effective date of the termination of the suspension agreement, which is July 30, 2002. Customs shall require antidumping duty cash deposits or bonds for entries of the subject merchandise based on the preliminary dumping margins, which are as follows:

International Trade Commission

The Department will notify the ITC of its termination of the suspension agreement, termination of the sunset review of the suspended investigation, and resumption of the LTFV investigation. If the Department makes a final affirmative determination, the ITC is scheduled to make its final determination concerning injury within 45 days after publication of the Department's final determination. If both the Department's and the ITC's final determinations are affirmative, the Department will issue an antidumping duty order.

Administrative Protective Order Access

Administrative protective orders previously granted in the original investigation will remain in effect. Parties must submit any necessary amendments for changes in staff promptly.

We are issuing and publishing this determination under section 733(f) of the Act and 19 CFR 353.15.