02-16198. 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, intent to resume antidumping investigation, and request for comments on the use of updated information: fresh tomatoes from mexico.

SUMMARY:

On May 31, 2002, 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 when these withdrawals become effective, the Department of Commerce intends to terminate the suspension agreement, terminate the five-year sunset review, and resume the antidumping investigation.

The Department of Commerce invites interested parties to submit comments on whether it should use updated information to complete the antidumping investigation. Comments must be submitted to the Department of Commerce within five days from the date of publication of this notice in the Federal Register.

FOR FURTHER INFORMATION CONTACT:

Yang Jin Chun or Mark Ross at [phone] or [phone], 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.

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 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 Department and certain producers/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 accounting for a large 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.

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.

Intent To Terminate Suspension Agreement and Resume the Antidumping Investigation

On May 31, 2002, 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 their withdrawal from the agreement suspending the antidumping investigation on fresh tomatoes from Mexico. Pursuant to the terms of the suspension agreement, these withdrawals will become effective 60 days after this notification to the Department, i.e., July 30, 2002. Because the suspension agreement will no longer cover substantially all imports of fresh tomatoes from Mexico, the Department intends to terminate the suspension agreement effective July 30, 2002.

Intent To Resume 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 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 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.

Intent To Terminate 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, January 29, 2002) (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).

If the Department terminates the suspension agreement, there will no longer be a suspended investigation for which to perform a sunset review. Therefore, the Department hereby announces its intent to terminate the sunset review of the suspended LTFV investigation on fresh tomatoes from Mexico, effective July 30, 2002.

Request for Comments on the Use of Updated Information

Given the unusual nature of this proceeding (e.g., based on our analysis of U.S. Customs data, three of the originally investigated companies have not exported tomatoes to the United States in the last two years) and the significant lapse of time since initiation of the investigation (i.e., over six years), the Department is considering selecting new respondents and collecting updated information for use in completing the investigation of sales at LTFV. In the event we collect updated information, the period of investigation will be from April 1, 2001, through March 31, 2002. This period reflects the most recently completed four fiscal quarters before the 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 their withdrawal from the suspension agreement. The Department invites interested parties to submit comments on this issue.

Interested parties should submit comments to the U.S. Department of Commerce, Room 1870, 14th Street and Constitution Avenue, NW, Washington, DC 20230, within five days of the date of publication of this notice in the Federal Register. Interested parties must file rebuttal comments within three days after the deadline for submission of comments. A list of authorities used, a table of contents, and an executive summary of each comment should accompany these submissions to the Department.

International Trade Commission

The Department has notified the International Trade Commission (ITC) of its intent to terminate the suspension agreement and resume the LTFV investigation. If the Department makes a final affirmative determination, then the ITC is scheduled to make its final determination concerning injury within 45 days after publication of the Department's final determination (by approximately January 27, 2003). 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 the U.S. Customs Service (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 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.

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: June 19, 2002.

Faryar Shirzad,

Assistant Secretary for Import Administration.