E7-24187. Fresh Tomatoes From Mexico

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

ACTION:

Notice of intent to terminate suspension agreement, intent to terminate the five-year sunset review, and intent to resume antidumping investigation: fresh tomatoes from Mexico.

SUMMARY:

On November 26, 2007, Mexican tomato growers accounting for a large 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 will no longer cover substantially all imports of fresh tomatoes from Mexico, the Department of Commerce intends to terminate the suspension agreement, terminate the five-year sunset review, and resume the antidumping investigation.

DATES:

Effective Date: December 13, 2007.

FOR FURTHER INFORMATION CONTACT:

Judith Wey Rudman or Jay Carreiro at [phone] or [phone], respectively; Office of Policy, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street & Constitution Avenue, NW., Washington, DC 20230.

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).

SUPPLEMENTARY INFORMATION:

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 initialed a proposed agreement to suspend the antidumping investigation. 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 56608 (November 1, 1996) (“Preliminary Determination”). On the same day on which the Department issued the Preliminary Determination, the Department and certain growers/exporters of fresh tomatoes from Mexico signed an agreement to suspend the investigation (1996 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 provided written notice to the Department of their withdrawal from the 1996 Suspension Agreement, effective July 30, 2002. Because the 1996 Suspension Agreement would no longer cover substantially all imports of fresh tomatoes from Mexico, effective July 30, 2002, the Department terminated the 1996 Suspension Agreement, terminated the sunset review of the suspended investigation, and resumed the antidumping investigation. See Notice of Termination of Suspension Agreement, Termination of Sunset Review, and Resumption of Antidumping Investigation: Fresh Tomatoes from Mexico, 67 FR 50858 (August 6, 2002).

On November 8, 2002, the Department and Mexican tomato growers/exporters initialed a proposed agreement suspending the resumed antidumping investigation on imports of fresh tomatoes from Mexico. On December 4, 2002, the Department and certain growers/exporters of fresh tomatoes from Mexico signed a new suspension agreement (“2002 Suspension Agreement”). See Suspension of Antidumping Investigation: Fresh Tomatoes From Mexico, 67 FR 77044 (December 16, 2002). On November 3, 2003, the Department published the Final Results of Analysis of Reference Prices and Clarifications and Corrections; Agreement Suspending the Antidumping Duty Investigation on Fresh Tomatoes From Mexico, 68 FR 62281 (November 3, 2003).

On November 26, 2007, 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 their withdrawal from the 2002 Suspension Agreement.

Scope of the Investigation

The merchandise subject to this investigation is all fresh or chilled tomatoes (fresh tomatoes) which have Mexico as their origin, except for those tomatoes which are for processing. 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. Fresh tomatoes that are imported for cutting up, not further processing (e.g., tomatoes used in the preparation of fresh salsa or salad bars), are covered by this Agreement.

Commercially grown tomatoes, both for the fresh market and for processing, are classified as Lycopersicon esculentum. Important commercial varieties of fresh tomatoes include common round, cherry, grape, plum, greenhouse, and pear tomatoes, all of which 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, the written description of the scope of this investigation is dispositive.

Intent To Terminate Suspension Agreement and Resume the Antidumping Investigation

On November 26, 2007, 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 their withdrawal from the 2002 Suspension Agreement, effective 90 days from the date of their withdrawal letter, or earlier, at the Department's discretion. Based on the withdrawal of the growers/exporters accounting for a significant percentage of exports of tomatoes to the United States from the 2002 Suspension Agreement, the 2002 Suspension Agreement will no longer cover substantially all imports of fresh tomatoes from Mexico. Accordingly, the Department intends to terminate the 2002 Suspension Agreement, effective no later than February 24, 2008.

Intent To Resume Antidumping Investigation

With the termination of the suspension agreement, in accordance with section 734(i)(1)(B) of the Act, the Department intends to resume the underlying antidumping investigation. Pursuant to section 734(i)(1)(B) of the Act, the Department intends to resume the investigation as if it had published the affirmative preliminary determination under section 733(b) of the Act on the effective date of the termination. 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 within 135 days of termination of the 2002 Suspension Agreement.

Intent To Terminate the Five-Year Sunset Review

On November 1, 2007, 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 (See Initiation of Five-Year (“Sunset”) Reviews, 72 FR 61861 (November 1, 2007).

If the Department terminates the 2002 Suspension Agreement, there will no longer be a suspended investigation of which to perform a sunset review. Therefore, the Department announces its intent to terminate the sunset review of the suspended LTFV investigation on fresh tomatoes from Mexico, effective on the date of termination of the 2002 Suspension Agreement.

International Trade Commission

The Department has notified the International Trade Commission (ITC) of its intent to terminate the 2002 Suspension Agreement and resume 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.

Suspension of Liquidation

The Department will instruct U.S. Customs and Border Protection (CBP) 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 2002 Suspension Agreement. CBP shall require antidumping duty cash deposits or bonds for entries of the subject merchandise based on the preliminary dumping margins, which range from 4.16 to 188.45 percent.

Administrative Protective Order Access

Administrative protective orders previously granted in the original investigation will remain in effect. Any necessary amendments for changes in staff must be submitted promptly. Parties must use the APO application form in effect at the time of the original investigation, Form ITA-367 (3.89).

This determination is issued and published in accordance with section 733(f) of the Act (19 U.S.C. 1673b(f)) and 19 CFR 353.15(1996).

Dated: December 7, 2007.

David M. Spooner,

Assistant Secretary for Import Administration.