[Federal Register Volume 78, Number 27 (Friday, February 8, 2013)]
[Notices]
[Pages 9366-9368]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-02914]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
[A-201-820]
Fresh Tomatoes From Mexico: Intent To Terminate Suspension
Agreement and Resume Antidumping Investigation and Intent To Terminate
Sunset Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: On February 2, 2013, the Department of Commerce (the
Department) and Mexican tomato growers/exporters accounting for a
significant percentage of all fresh tomatoes imported into the United
States from Mexico initialed a draft agreement that would suspend a
resumed antidumping investigation on fresh tomatoes from Mexico. Based
on this draft agreement, and if an acceptable agreement is reached, we
anticipate that the Mexican tomato growers/exporters will withdraw from
the 2008 Agreement in order to enter into a new agreement. If the
Mexican tomato growers/exporters withdraw from the 2008 Agreement, the
Agreement will no longer cover substantially all imports of fresh
tomatoes from Mexico. Accordingly, the Department of Commerce would
terminate the suspension agreement and resume the antidumping
investigation. In addition, in the event the Department terminates the
suspension agreement and resumes the investigation, the Department
intends to terminate the ongoing sunset review. Conclusion of a new
agreement would result in suspension of the resumed investigation.
DATES: Effective Date: February 8, 2013.
FOR FURTHER INFORMATION CONTACT: Judith Wey Rudman or Julie Santoboni
at (202) 482-0192 or (202) 482-3063, respectively; Office of Policy,
Import Administration, International Trade Administration, U.S.
Department of Commerce, 14th Street & Constitution Avenue NW.,
Washington, DC 20230.
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
[[Page 9367]]
Department of its affirmative preliminary injury determination.
On October 10, 1996, the Department and Mexican tomato growers/
exporters 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, effective 90 days
from the date of their withdrawal letter (i.e., February 24, 2008), or
earlier, at the Department's discretion.
On November 28, 2007, the Department and Mexican tomato growers/
exporters initialed a new proposed agreement to suspend the antidumping
investigation on imports of fresh tomatoes from Mexico. On December 3,
2007, the Department released the initialed agreement to interested
parties and afforded them an opportunity to comment on the initialed
agreement. On December 17 and 18, 2007, several interested parties
filed comments in support of the initialed agreement.
Because the 2002 Suspension Agreement would no longer cover
substantially all imports of fresh tomatoes from Mexico, the Department
published a notice of intent to terminate the 2002 Suspension
Agreement, intent to terminate the five-year sunset review of the
suspended investigation, and intent to resume the antidumping
investigation. See Fresh Tomatoes from Mexico: Notice of Intent to
Terminate Suspension Agreement, Intent to Terminate the Five-Year
Sunset Review, and Intent to Resume Antidumping Investigation, 72 FR
70820 (December 13, 2007). On January 16, 2008, the Department
published a notice of termination of the 2002 Suspension Agreement,
termination the five-year sunset review of the suspended investigation,
and resumption of the antidumping investigation, effective January 18,
2008. See Fresh Tomatoes from Mexico: Notice of Termination of
Suspension Agreement, Termination of Five-Year Sunset Review, and
Resumption of Antidumping Investigation, 73 FR 2887 (January 16, 2008).
On January 22, 2008, the Department signed a new suspension
agreement (2008 Suspension Agreement) with certain growers/exporters of
fresh tomatoes from Mexico. See Suspension of Antidumping
Investigation: Fresh Tomatoes from Mexico, 73 FR 4831 (January 28,
2008).
On August 15, 2012, certain Mexican growers/exporters filed a
letter with the Department requesting consultations under section IV.G.
of the 2008 Suspension Agreement and the Department agreed to consult.
As a result of these consultations, on February 2, 2013, the Department
and Mexican tomato growers/exporters accounting for a significant
percentage of all fresh tomatoes imported into the United States from
Mexico initialed a draft agreement that would suspend a resumed
antidumping investigation on fresh tomatoes from Mexico.
Scope of the Investigation
The merchandise subject to the suspended 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 suspended 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 suspended
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 suspended
investigation is dispositive.
Intent To Terminate Suspension Agreement and Resume the Antidumping
Investigation
Based on the initialed draft agreement, and if an acceptable
agreement is reached, we anticipate that the Mexican tomato growers
will withdraw from the 2008 Suspension Agreement. If the growers/
exporters accounting for a significant percentage of exports of
tomatoes to the United States withdraw from the 2008 Suspension
Agreement, the 2008 Suspension Agreement will no longer cover
substantially all imports of fresh tomatoes from Mexico. Accordingly,
the Department would terminate the 2008 Suspension Agreement and resume
the antidumping investigation in
[[Page 9368]]
accordance with section 734(i)(1)(B) of the Tariff Act of 1930, as
amended (the Act). Pursuant to section 734(i)(1)(B) of the Act, the
Department would 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 (61 FR at 56609), the Department postponed
the final determination until the 135th day after the date of the
preliminary determination. The Department therefore would make its
final determination in a resumed investigation within 135 days of
termination of the 2008 Suspension Agreement, unless a new suspension
agreement becomes effective. However, if the Department and
substantially all of the growers/exporters of fresh tomatoes from
Mexico sign a new suspension agreement, following the notice and
comment period provided in accordance with section 734(c) of the Act,
the resumed investigation would be suspended.
Intent To Terminate the Five-Year Sunset Review
On December 3, 2012, 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'') Review, 77 FR 71684 (December 3, 2012).
If the Department terminates the 2008 Suspension Agreement, there
will no longer be a suspended investigation of which to conduct a
sunset review. Therefore, the Department would terminate the sunset
review of the suspended antidumping investigation on fresh tomatoes
from Mexico, effective on the date of termination of the 2008
Suspension Agreement.
International Trade Commission
The Department has notified the International Trade Commission
(ITC) of its intent to terminate the 2008 Suspension Agreement and
resume the antidumping investigation. If the Department resumes the
antidumping investigation, and if the Department makes a final
affirmative determination in the investigation, the ITC is scheduled to
make its final determination concerning injury within 45 days of
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. However, as indicated
above, if the Department and substantially all of the growers/exporters
of fresh tomatoes from Mexico sign a new suspension agreement,
following the notice and comment period provided in accordance with
section 734(c) of the Act, the resumed investigation would be
suspended.
Suspension of Liquidation
If the Department terminates the 2008 Suspension Agreement and
resumes the antidumping investigation as described above, 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 2008 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. See Preliminary Determination, 61 FR
at 56615.
Administrative Protective Order Access and Applicable Regulations
The following requirements will apply if and during such time as
the investigation is resumed. Because of the significant changes made
to the administrative protective order (APO) process since the
investigation, the Department will issue a new APO for any resumed
investigation that will supersede the previously issued firm-specific
APOs. Those authorized applicants that were granted APOs during the
original investigation, as indicated in the most recent APO service
list on the Department's Web site, will continue to have access to
business proprietary information under APO. Any new APO applications or
necessary amendments for changes in staff under the pre-existing APOs
should be submitted promptly, and in accordance with the Department's
regulations currently in effect. See section 777(c)(1) of the Act; 19
CFR 351.103, 351.304, 351.305 and 351.306.
In addition, because of the significant changes made to the
Department's filing and certification requirements since the
investigation, including electronic filing, the Department intends to
apply its current regulations and practices with regard to filing and
certification, should the antidumping investigation be resumed. See 19
CFR 351.303(b) and (g). However, with respect to the procedures for the
conduct of any resumed investigation generally, including any possible
suspension thereof, the Department's regulations in effect in 1996
shall govern. See 19 CFR 351.701; San Vicente Camalu SPR de Ri v.
United States, 491 F.Supp.2d 1186 (CIT 2007).
This determination is issued and published in accordance with
section 733(f) and 734(i) of the Act.
Dated: February 4, 2013.
Paul Piquado,
Assistant Secretary for Import Administration.
[FR Doc. 2013-02914 Filed 2-7-13; 8:45 am]
BILLING CODE 3510-DS-P