[Federal Register Volume 68, Number 62 (Tuesday, April 1, 2003)]
[Notices]
[Pages 15741-15743]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-7627]


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INTERNATIONAL TRADE COMMISSION

[Inv. No. 731-TA-747]


Fresh Tomatoes From Mexico; Notice of Commission Determination To 
Dismiss Request for Institution of a Section 751(b) Review 
Investigation

AGENCY: International Trade Commission.

ACTION: Dismissal of a request to institute a section 751(b) review 
investigation concerning the suspension agreement in effect suspending 
investigation No. 731-TA-747: fresh tomatoes from Mexico.

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SUMMARY: The Commission determines pursuant to section 751(b) of the 
Tariff Act of 1930 (the Act) \1\ and Commission rule 207.45,\2\ that 
the subject request does not show the existence of good cause or 
changed circumstances sufficient to warrant institution of an 
investigation to review the suspension agreement in effect suspending 
the Commission's investigation No. 731-TA-747: Fresh Tomatoes from 
Mexico. Pursuant to Commission rule 207.45(b),\3\ the Commission also 
determines that the request is not sufficient to warrant the 
publication of a notice in the Federal Register seeking comment on the 
request.
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    \1\ 19 U.S.C. 1675(b).
    \2\ 19 CFR 207.45.
    \3\ 19 CFR 207.45(b).

FOR FURTHER INFORMATION CONTACT: Michael Diehl, Esq., Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street, 
SW., Washington, DC 20436, telephone 202-205-3095. Hearing-impaired 
persons are advised that information on this matter

[[Page 15742]]

can be obtained by contacting the Commission's TDD terminal on 202-205-
1810. Persons with mobility impairments who will need special 
assistance in gaining access to the Commission should contact the 
Office of the Secretary at 202-205-2000. General information concerning 
the Commission may also be obtained by accessing its Internet server 
(http://www.usitc.gov). The public record for this matter may be viewed 
on the Commission's electronic docket (EDIS at http://edis.usitc.gov).
    Background Information: In May of 1996, the Commission made an 
affirmative preliminary determination in Fresh Tomatoes from Mexico, 
Inv. No. 731-TA-747 (Preliminary), USITC Pub. 2967. On October 29, 
1996, the Department of Commerce (Commerce) entered into a suspension 
agreement with growers/exporters of fresh tomatoes from Mexico. As a 
result, the Commission and Commerce suspended their investigations.\4\
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    \4\ 61 FR 56618 (Nov. 1, 1996) (suspension of DOC 
investigation); 61 FR 58217, 58218 (Nov. 1, 1996) (suspension of ITC 
investigation).
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    On October 1, 2001, pursuant to section 751(c), Commerce initiated 
a five-year review of the suspension agreement, and the Commission 
instituted its five-year review.\5\ Before the reviews were completed, 
the Mexican parties withdrew from the suspension agreement, effective 
July 30, 2002.\6\ Commerce and the Commission terminated their five-
year reviews and resumed their respective investigations, pursuant to 
19 U.S.C. 734(i).\7\ On December 4, 2002, before the resumed 
investigations were completed, Commerce and fresh tomato growers/
exporters from Mexico entered into a new suspension agreement. 
Accordingly, pursuant to section 734(c), Commerce and the Commission 
again suspended their investigations.\8\
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    \5\ 66 FR 49926 (DOC), 66 FR 49975 (ITC).
    \6\ 67 FR 50858 (Aug. 6, 2002).
    \7\ 67 FR 50858 (Aug. 6, 2002) (DOC), 67 FR 56854, 56855 (Sept. 
5, 2002) (ITC).
    \8\ 67 FR 77044 (Dec. 16, 2002) (DOC), 67 FR 78815 (Dec. 26, 
2002) (ITC).
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    On February 10, 2003, the Commission received a request to 
institute a changed circumstances review of the suspension agreement 
currently in effect regarding imports of fresh tomatoes from Mexico. 
The request was filed by counsel for San Vicente Camalu, a producer of 
fresh tomatoes in Mexico, and for Expo Fresh, LLC, an importer of fresh 
tomatoes from Mexico (collectively, ``SVC'').

Analysis

    In considering whether to institute a review investigation, the 
Commission must be persuaded that there is sufficient information 
available demonstrating:
    (1) That there are significant changed circumstances from those in 
existence at the time of the determination or suspension agreement for 
which review is sought;
    (2) That those changed circumstances are not the natural and direct 
result of the imposition of the antidumping duty order or suspension 
agreement; and
    (3) That the changed circumstances, allegedly indicating that 
revocation of the order or termination of the suspended investigation 
would not be likely to lead to the continuation or recurrence of 
material injury to the domestic industry, warrant a full 
investigation.\9\

    \9\ See generally Silicon Metal from Argentina, Brazil, and 
China, 63 FR 52289 (Sept. 30, 1998) (citing, inter alia, A. Hirsh, 
Inc. v. United States, 737 F. Supp. 1186 (Ct. Int'l Trade 1990)).
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In general, changed circumstances warranting review are those relating 
to (1) the import pattern following imposition of an order and (2) 
market conditions.\10\
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    \10\ A. Hirsh, Inc. v. United States, 729 F. Supp. 1360, 1363 
(Ct. Int'l Trade 1990).
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    The Commission may not without good cause review a determination 
made under sections 705 or 735 of the Act, or suspension agreements 
made under sections 704 or 734 of the Act, less than 24 months after 
the date of publication of notice of that determination or 
suspension.\11\ Good cause includes:
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    \11\ 19 U.S.C. 1675(b)(4).
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    (1) Fraud or misfeasance in the proceeding for which review is 
sought;
    (2) Acts of God, as exemplified where a severe freeze sharply 
reduced U.S. producers' shipments of frozen concentrated orange juice; 
and
    (3) A mistake of law or fact in the proceeding for which review is 
requested that renders that proceeding unfair.\12\
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    \12\ See generally Porcelain-On-Steel Cooking Ware from Taiwan, 
Views of the Commission Concerning Its Determination to Not 
Institute a Review of Investigation No. 731-TA-299, USITC Pub. 2117 
(Aug. 1988) at 7-8 (citing Welded Carbon Steel Pipes and Tubes from 
Turkey, Commission Memorandum Opinion, in re Docket No. 1394; 
Request for review investigation under section 751(b) of the Tariff 
Act of 1930, 19 U.S.C. 1675(b)). The Commission's views in 
Porcelain-On-Steel Cooking Ware reference the ``original 
investigation'' and ``original proceeding'' because at the time of 
those views (1988) the good cause requirement did not apply to 
Commission reviews of suspended investigations.

This list ``is by no means exhaustive.''\13\ However, ``good cause will 
be found only in an unusual case'' and ``[w]hat constitutes good cause 
will necessarily depend on the facts of a particular case.''\14\ The 
review at issue here was requested less than 24 months after the date 
on which notice of the suspension agreement was published.
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    \13\ Id. at 8.
    \14\ Id. at 7.
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    The Commission seeks comments on a request for a changed 
circumstances review upon receipt of a ``properly filed and sufficient 
request.'' \15\ The decision to undertake a review is ``a threshold 
question * * * [which] may be made only when it reasonably appears that 
positive evidence adduced by the petitioner together with other 
evidence gathered by the Commission leads the ITC to believe that there 
are changed circumstances sufficient to warrant review.'' \16\ The 
party requesting a changed circumstances review bears the burden of 
persuasion of showing that there are sufficient changed circumstances 
to warrant a review.\17\
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    \15\ 19 CFR 207.45(b).
    \16\ Avesta AB v. United States, 689 F. Supp 1173, 1181 (Ct. 
Int'l Trade 1988).
    \17\ 19 U.S.C. 1675(b)(1) & (3), Avesta, 689 F. Supp. at 1181.
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    SVC asserts that no five-year review will occur until 2007, due to 
the suspension of the investigation in 1996, the termination of that 
suspension agreement in 2002, and the entry into the second suspension 
agreement in 2002. SVC asserts that such a result is contrary to U.S. 
law and U.S. obligations under the World Trade Organization agreements. 
SVC does not, however, address the good cause requirement that applies 
to the requested review, nor does it allege any change in circumstances 
that have occurred since the entry into the suspension agreement in 
December of 2002. The entry into the suspension agreement does not 
itself constitute a changed circumstance. Given SVC's failure to assert 
the existence of good cause or any change in circumstances, the 
Commission concludes that SVC has not met its burden in this request. 
For the same reasons, the Commission concludes that SVC's request is 
not ``sufficient'' to warrant the issuance of a notice seeking comment 
on the request.
    In light of the above, the Commission determines that institution 
of a review investigation under section 751(b) of the Act concerning 
the suspension agreement in effect suspending investigation No. 731-TA-
747: Fresh Tomatoes from Mexico, is not warranted.

    Issued: March 25, 2003.


[[Page 15743]]


    By order of the Commission.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. 03-7627 Filed 3-31-03; 8:45 am]
BILLING CODE 7020-02-P