[Federal Register Volume 67, Number 151 (Tuesday, August 6, 2002)]
[Notices]
[Pages 50858-50860]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-19822]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-201-820]


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.

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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

[[Page 50859]]

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

[[Page 50860]]

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:

------------------------------------------------------------------------
                                                        Weighted-average
                   Grower/Exporter                     percentage margin
------------------------------------------------------------------------
San Vincente Camalu..................................               4.16
Ernesto Fernando Echavarria Salazar Grupo Solidario..              11.89
Arturo Lomeli Villalobas S.A. de C.V.................              26.97
Eco-Cultivos S.A. de C.V.............................             188.45
Ranchos Los Pinos S. de R.L. de C.V..................              10.26
Administradora Horticola del Tamazula................              28.30
Agricola Yory, S. de P.R. de R.I.....................              11.95
All Others...........................................              17.56
------------------------------------------------------------------------

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.

    Dated: July 30, 2002.
Faryar Shirzad,
Assistant Secretary for Import Administration.
[FR Doc. 02-19822 Filed 8-5-02; 8:45 am]
BILLING CODE 3510-DS-S