02-2138. Preliminary Results of Five-Year Sunset Review of Suspended Antidumping Duty Investigation: Fresh Tomatoes From Mexico

AGENCY:

Import Administration, International Trade Administration, Commerce.

ACTION:

Notice of preliminary results of full sunset review: fresh tomatoes from Mexico.

SUMMARY:

On October 1, 2001, the Department of Commerce (“the Department”) initiated a five-year (“sunset”) review of the suspended antidumping duty investigation on fresh tomatoes from Mexico (66 FR49926) pursuant to section 751(c) of the Tariff Act of 1930, as amended (“the Act”). On the basis of notice of intent to participate filed on behalf of domestic interested parties, and substantive comments filed on behalf of the domestic and respondent interested parties, the Department is conducting a full (240-day) sunset review of this suspended antidumping duty investigation. As a result of this review, the Department preliminarily finds that termination of the suspended antidumping duty investigation on fresh tomatoes from Mexico would be likely to lead to continuation or recurrence of dumping at the levels indicated in the Preliminary Results of Review section of this notice.

EFFECTIVE DATE:

January 29, 2002.

FOR FURTHER INFORMATION CONTACT:

James P. Maeder or Martha V. Douthit, Office of Policy for Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: [phone] or [phone], respectively.

SUPPLEMENTARY INFORMATION:

Statute and Regulations

Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (“the Act”), are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act. In addition, unless otherwise indicated, all citations to the Department regulations are to 19 CFR part 351 (2001). Guidance on methodological or analytical issues relevant to the Department's conduct of sunset reviews is set forth in the Department Policy Bulletin 98:3 Policies Regarding the Conduct of Five-year (“Sunset”) Reviews of Antidumping and Countervailing Duty Orders; Policy Bulletin, 63 FR 18871 (April 16, 1998) (Sunset Policy Bulletin).

Scope of Review

The products covered by the sunset review of the suspension agreement on fresh tomatoes from Mexico include all fresh or chilled tomatoes (fresh tomatoes) except for cocktail tomatoes and those tomatoes which are for processing. For purposes of this review, 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 review, 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 section 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 review. 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 review. Tomatoes imported from Mexico covered by this review are classified under the following subheadings of the Harmonized Tariff Schedules of the United States (HTS), according to the season of importation: 0702.00.20, 0702.00.40, 0702.00.60, and 9906.07.01 through 9906.07.09. Although the HTS numbers are provided for convenience and customs purposes, our written description of the scope of this proceeding is dispositive.

History of Suspension Agreement

On April 18, 1996, the Department initiated an antidumping duty investigation under section 732 of the Tariff Act of 1930 (“the Act”) on fresh tomatoes from Mexico. See Initiation of Antidumping Duty Investigation: Fresh Tomatoes From Mexico, 61 FR 18377 (April 25, 1996). On October 28, 1996, the Department preliminarily determined that imports of fresh tomatoes from Mexico were being sold in the United States at less than fair value. In the preliminary determination of the investigation, the Department calculated weighted-average dumping margins of 4.16 percent for San Vincente Camalu (“Camalu”), 11.89 percent for Ernesto Fernando Echavarria Salazar Grupo Solidario (“Echavarria”), 26.97 percent for Arturo Lomeli Villalobas S.A. de C. V. (“Lomeli”), 188.45 percent for Eco Cultivos, S.A. de C.V. (“Eco-Cultivos”), 10.26 percent for Ranchos Los Pinos S. de R.L. de C.V. (“RLP”), 28.30 percent for Administradora Horticola Del Tamazula (“Tamazula”), 11.95 percent for Agricola Yory (“Yory”), and 17.56 percent for “all other” Mexican producers and exporters of the subject merchandise. On that same day, the Department and the signatory producers/exporters of fresh tomatoes from Mexico signed the final suspension agreement (the “Agreement”) and which was published in the Federal Register concurrently. Notice of Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination (61 FR 56618) and Suspension of Antidumping Investigation on Fresh Tomatoes from Mexico (63 FR 43674). On August 14, 1998, the Department published the only amendment to the Agreement. See Amendment to the Suspension Agreement on Fresh Tomatoes from Mexico, 63 FR 43674 (April 14, 1998). The Agreement remains in effect for all producers and exporters of fresh tomatoes from Mexico who are signatories of the agreement.

Background

On October 1, 2001, the Department initiated a sunset review of the suspended antidumping duty investigation on fresh tomatoes from Mexico, pursuant to section 751(c) of the Act. See Notice of Initiation of Five-Year (Sunset) Review, 66 FR 49926 (October 1, 2001). On October 16, 2001, the Department received Notice of Intent to Participate on behalf of the Florida Commissioner of Agriculture, the Florida Tomato Growers Exchange (“FTGE”), the Florida Tomato Exchange (“FTE”), the California Fresh Tomato Growers Exchange (“CFTGE”), the Florida Fruit and Vegetable Association (“FFVA”), the South Carolina Tomato Association (“SCTA”), the Gadsden County Tomato Growers Association (“GCTGA”), the Quincy Tomato Growers Exchange (“QTGE”), and Eurofresh (collectively, “domestic interested parties”), within the applicable deadline specified in section 351.218(d)(1)(i) of the Sunset Regulations. See Letters of Domestic Interested Parties, Notice of Intent to Participate—Sunset Review of the Suspension Agreement on Fresh Tomatoes from Mexico, October 16, 2001. Domestic interested parties claimed interested-party status under sections 771(9)(E), 771(9)(F), and 771(9)(C) of the Act. See Domestic Interested Party's Notice of Intent to Participate, October 16, 2001, at 2-4. In addition, domestic interested parties assert that they are not related to a foreign producer/exporter and are not importers, or related to importers, of the subject merchandise. Id. 5-7. On October 31, 2001, the Department received a complete substantive response from the domestic interested parties within the 30-day deadline specified in the Sunset Regulations under section 351.218(d)(3)(i). On October 31, 2001, the Department received a complete substantive response to the notice of initiation in the five-year sunset review from respondent interested parties: Confederacion de Asociaciones de Agricolas del Estado de Sinaloa and the Confederation Nacional de Productores de Hortalizas (collectively “CAADES”). CAADES asserts that it participated fully in the original investigation and works closely with its members as well as with additional members who elected to submit voluntary responses. See CAADES, substantive response at 3. In addition, CAADES states that it worked closely with the Department to negotiate the suspension agreement and has met on a regular basis with the Department to discuss implementing, monitoring, and improving the agreement. Id. CAADES claimed interested-party status under section 771(9)(A) of the Act as a Mexican confederation, the majority of whose members grow and/or export tomatoes. On November 5, 2001, CAADES requested an extension of the deadline for filing rebuttal to the substantive responses. On that same day, the Department extended the deadline until November 7, 2001, for all participants eligible to file rebuttal comments.

In a sunset review, the Department normally will conclude that there is adequate response to conduct a full sunset review where respondent interested parties account for more than 50 percent, by volume, of total exports of subject merchandise to the United States. See, 19 CFR 351.218(e)(1)(ii)(A) (63 FR 13516 (March 20, 1998)). After examining CAADES's total exports of the subject merchandise, on November 20, 2001, the Department determined that CAADES accounted for more than 50 percent total production of the domestic like product. See November 20, 2001, Letter from Jeffrey A. May, Director, Office of Policy, Import Administration, to Lynn Featherstone, Director, Office of Investigations, International Trade Commission. Because the response of CAADES constituted an adequate response to the notice of initiation, the Department is conducting a full (240-day) sunset review in accordance with section 751(c)(3)(B) of the Act, and 19 CFR 351.218(e)(1)(i) and will issue final results of review not later than May 29, 2002.

Analysis of Comments Received

All issues raised by parties to this sunset review are addressed in the Issues and Decision Memorandum (“Decision Memorandum”) from Jeffrey A. May, Director, Office of Policy, Import Administration, to Faryar Shirzad, Assistant Secretary for Import Administration, dated January 22, 2002, which is adopted by this notice. The issues discussed in the Decision Memorandum include the likelihood of continuation or recurrence of dumping and the magnitude of the margins likely to prevail were the Agreement terminated. Parties may find a complete discussion of all issues raised in this review and the corresponding recommendations in this public memorandum which is on file in the Central Records Unit, room B-099, of the main Commerce building. In addition, a complete version of the Decision Memorandum may be accessed directly on the Web at http://ia.ita.doc.gov/​frn,, under the heading “January 2002.” The paper copy and electronic version of the Decision Memorandum are identical in content.

Preliminary Results of Review

We preliminarily determine that termination of the suspended antidumping duty investigation on fresh tomatoes from Mexico would be likely to lead to continuation or recurrence of dumping at the following percentage weighted-average margins:

Manufacturer/exporters	Weighted- average margin percentage
Camalu	4.16
Echavarria	11.89
Lomeli	26.97
Eco-Cultivos	188.45
RLP	10.26
Tamazula	28.30
Yory	11.95
All Others	17.56

Any interested party may request a hearing within 30 days of publication of this notice in accordance with 19 CFR 351.310(c). Interested parties may submit case briefs no later than March 11, 2002, in accordance with 19 CFR 351.309(c)(1)(i). Rebuttal briefs, which must be limited to issues raised in the case briefs, may be filed not later than March 15, 2002. Any hearing, if requested, will be held on March 18, 2002, in accordance with 19 CFR 351.310(d). The Department will issue a notice of final results of this sunset review, which will include the results of its analysis of issues raised in any such, no later than May 29, 2002.

This sunset review and notice are in accordance with sections 751(c), 752, and 777(i)(1) of the Act.

Dated: January 22, 2002.

Faryar Shirzad,

Assistant Secretary for Import Administration.