Fresh Tomatoes from Mexico: Notice of Initiation of Changed Circumstances Review, 50553-50556 [2012-20552]

Agencies

• DEPARTMENT OF COMMERCE
• International Trade Administration

[Federal Register Volume 77, Number 162 (Tuesday, August 21, 2012)]
[Notices]
[Pages 50553-50556]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-20552]



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Vol. 77

Tuesday,

No. 162

August 21, 2012

Part II





Department of Commerce





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International Trade Administration





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Fresh Tomatoes from Mexico: Notice of Initiation of Changed 
Circumstances Review; Notices

Federal Register / Vol. 77 , No. 162 / Tuesday, August 21, 2012 / 
Notices

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DEPARTMENT OF COMMERCE

International Trade Administration

[A-201-820]


Fresh Tomatoes from Mexico: Notice of Initiation of Changed 
Circumstances Review

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

SUMMARY: On January 22, 2008, the Department of Commerce (the 
Department) signed the current antidumping suspension agreement on 
fresh tomatoes with growers/exporters of Mexican tomatoes accounting 
for substantially all (i.e., not less than 85 percent) of Mexico's 
tomato exports to the United States. The agreement covers all fresh or 
chilled tomatoes of Mexican origin, except tomatoes that are for 
processing. On June 22, 2012, the U.S. petitioners in the underlying 
suspended antidumping duty investigation (i.e., the Florida Tomato 
Exchange, the Florida Tomato Growers Exchange, the Florida Fruit and 
Vegetable Association, the Florida Farm Bureau Federation, the Gadsen 
County Tomato Growers Association, Inc., the South Carolina Tomato 
Association, Inc., and the Ad Hoc Group of Florida, California, 
Georgia, Pennsylvania, South Carolina, Tennessee, and Virginia Tomato 
Growers (collectively, the petitioners)) filed a request for withdrawal 
of the petition and termination of the investigation and the suspension 
agreement.\1\ For the reasons stated in this notice, the Department is 
initiating a changed circumstances review of the suspended 
investigation. Interested parties are invited to submit comments for 
the Department's consideration.
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    \1\ Letters were filed from all of the petitioners listed in 
Exhibit 5 of the April 11, 1996, supplement to the petition, except 
for Landseidel Farms, Inc., Byrd Foods, Inc., and J&B Tomato, Inc. 
The petitioners' June 22, 2012, filing included statements from the 
Executive Vice President of the Florida Tomato Exchange explaining 
that multiple attempts had been made to contact these three 
companies and attesting that there is no indication that these 
companies are still producing tomatoes.

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DATES: Effective Date: August 21, 2012.

FOR FURTHER INFORMATION CONTACT: Judith Wey Rudman or Anne D'Alauro, 
Import Administration, International Trade Administration, U.S. 
Department of Commerce, 14th Street and Constitution Avenue NW, 
Washington DC 20230; telephone (202) 482-0192 or (202) 482-4830, 
respectively.

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). See Initiation of Antidumping Duty 
Investigation: Fresh Tomatoes From Mexico, 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. See Fresh Tomatoes From Mexico; Import 
Investigation, Investigation No. 731-TA-747 (Preliminary), 61 FR 28891 
(June 6, 1996).
    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 were 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 that the Preliminary 
Determination was signed, the Department and certain growers/exporters 
of fresh tomatoes from Mexico signed an agreement to suspend the 
investigation. See Suspension of Antidumping Investigation: Fresh 
Tomatoes from Mexico, 61 FR 56618 (November 1, 1996) (1996 Suspension 
Agreement).
    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 five-year 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 certain 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 provided 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 of 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

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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 June 22, 2012, the U.S. petitioners in the suspended antidumping 
investigation filed a request for withdrawal of the petition and 
termination of the investigation and the suspension agreement (see 
footnote 1 above). Subsequent to their initial submission, the 
petitioners filed additional information supporting their request on 
July 11 and 23, and August 6 and 10, 2012, and additional letters of 
support on July 2, 19, 24, 26, and 30, and August 14, 2012. To date, 
the petitioners have submitted on the record of the 2008 Suspension 
Agreement proceeding letters of support from other tomato growers in 
California, Maryland, Virginia, Georgia, South Carolina, New York, 
Pennsylvania, North Carolina, Florida, and Arizona. The petitioners 
have also filed letters of support on the same record from the 
Certified Greenhouse Farmers Association and the Coalition of Immokalee 
Workers, as well as letters of support from the Florida Department of 
Agriculture and Consumer Services, the Virginia Secretary of 
Agriculture and Forestry, the Texas Department of Agriculture, the 
Alabama Department of Agriculture and Industries, the Georgia 
Department of Agriculture, the North Carolina Department of 
Agriculture, and the California Department of Food and Agriculture.
    The Mexican tomato grower/exporter signatories to the agreement 
oppose terminating the antidumping proceeding and the suspension 
agreement. The Mexican tomato grower/exporter signatories filed 
comments opposing the petitioners' request for terminating the 
proceeding and the suspension agreement on July 5, 17, and 30, and 
August 13, 2012, and letters of opposition from numerous parties on 
July 19, 25, 26, 27, 30, and 31, and August 1, 2, 3, 7, 8, 10, 13, and 
14, 2012. To date, the Mexican tomato growers/exporters have filed 
letters on the record of the 2008 Suspension Agreement proceeding 
opposing withdrawal of the petition and termination of the agreement 
from the Fresh Produce Association of the Americas, based in Nogales, 
Arizona, numerous U.S. importers, several members of Congress, and 
several Mexican government officials.
    These filings are on the public record of the 2008 Suspension 
Agreement in Import Administration's Central Records Unit, room 7046 of 
the main Department of Commerce building. These filings are also 
available to registered users via Import Administration's Antidumping 
and Countervailing Duty Centralized Electronic Service System (IA 
ACCESS) at https://iaaccess.trade.gov.

Scope of the Suspended 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 Agreement 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 the suspended investigation is dispositive.

Initiation of Changed Circumstances Review

    Based on the information contained in the petitioners' June 22, 
2012, request, and following a review of the statute, our regulations 
and precedent, the Department has determined to conduct a changed 
circumstances review pursuant to section 751(b)(1)(B) of the Act. 
Although the petitioners request that the Department immediately 
terminate the suspended investigation without further comment or 
consideration based on their withdrawal of the petition, the Department 
has determined that a changed circumstances review is warranted. The 
Tariff Act of 1930, as amended (the Act), explicitly provides separate 
and distinct mechanisms for termination of an ongoing investigation (by 
withdrawal of the petition or indication of lack of interest) and a 
suspended investigation (through an administrative review or changed 
circumstances review). Compare section 734(a)(1)(A) of the Act with 
sections 751(d) and 782(h)(2) of the Act. The Department's regulations 
(both those currently in effect and those in effect in 1996) \2\ mirror 
this distinction. Compare 19 CFR 351.222(g) and 19 CFR 
353.25(d)(1)(1996) with 19 CFR 351.207(b) and 19 CFR 
353.17(a)(1)(1996). Further, both the Act and the regulations (in 
effect currently and in 1996) contemplate treating termination of a 
suspended investigation like revocation of an order, and provide for 
termination of a suspended investigation through a changed 
circumstances review (or an annual administrative review) if 
substantially all of the domestic producers express a lack of interest 
in the suspended investigation. This distinction was made clearer in an 
amendment to the statute by the 1994 Uruguay Round Agreements Act 
(URAA), which added section 782(h) of the Act. This section, which 
clarifies that ``no interest'' revocations and terminations are 
permissible, also clearly distinguished between termination of 
investigations and termination of suspended investigations. This 
provision addresses the termination of suspended investigations and the 
revocation of orders together in paragraph (h)(2), while the 
termination of an investigation is addressed separately in paragraph 
(h)(1). See section 782(h) of the Act.
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    \2\ Matters related to the conduct of the underlying 
investigation are governed by the regulations in effect in 1996. See 
San Vicente Camalu SPR de RI v. United States, 491 F. Supp. 2d 1186, 
1203-04 (CIT 2007). The Department's current regulations are 
effective for segments of proceedings initiated after June 18, 1997. 
Id.; 19 CFR 351.701(2012). Accordingly, because this changed 
circumstances review is a new segment of the proceeding, it is 
governed by the regulations currently in effect.
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    Although the petitioners cite three cases as support for their 
request to immediately terminate the suspended investigation (Axle and 
Brake Assemblies from Hungary,\3\ EPROMs from Japan,\4\ and Typewriters 
from

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Singapore \5\), the Department disagrees that this precedent governs 
the instant proceeding. Each of these cases is distinguishable from the 
present circumstances. Among other things, the agreements in the cited 
cases predate the URAA (effective January 1, 1995), and thus were not 
subject to the same statutory provisions that apply to the tomatoes 
suspension agreement, e.g., section 782(h) of the Act, which clarified 
that ``no interest'' revocations and terminations were permissible and 
clearly distinguishes between termination of an ongoing investigation 
and a suspended investigation. Further, in the cited cases, termination 
occurred with the agreement of or absence of objection from the 
signatories to the agreement in each of these cases. No such agreement 
or lack of objection from the Mexican signatories exists in this case. 
Further, notwithstanding the fact that the agreement in EPROMs from 
Japan predates the URAA, the termination in that case appears to 
fulfill the requirements of a changed circumstances review, even though 
the termination process was not labeled as such. In addition, the 
Department specifically stated in that case that a changed 
circumstances review pursuant to section 751(b) of the Act is 
``normally the mechanism for the termination of a suspended 
investigation.'' See EPROMs from Japan, 68 FR at 28671.
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    \3\ Truck Trailer Axle and Brake Assemblies from Hungary; 
Termination of Antidumping Duty Investigation, 61 FR 13481 (March 
27, 1996) (Axle and Brake Assemblies from Hungary).
    \4\ Erasable Programmable Read Only Memories From Japan: 
Termination of Suspended Antidumping Duty Investigation, 62 FR 28670 
(May 27, 1997) (EPROMs from Japan).
    \5\ Portable Electric Typewriters from Singapore, Termination of 
Suspended Antidumping Duty Investigation, 59 FR 22592 (May 2, 1994) 
(Typewriters from Singapore).
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    In light of the distinct statutory and regulatory provisions 
governing termination of an ongoing investigation and termination of a 
suspended investigation, and consistent with our statement in EPROMs 
from Japan, the Department has determined that a changed circumstances 
review is the expected mechanism by which the Department will examine a 
request to terminate a suspended investigation. Therefore, in 
accordance with section 751(b)(1) of the Act, we are initiating a 
changed circumstances review.
    Both the Act and the Department's current regulations require that 
``substantially all'' domestic producers express a lack of interest in 
the order or suspension agreement in order for the Department to revoke 
an order or terminate a suspended investigation. See 782(h) of the Act 
and 19 CFR 351.222(g). The Department has interpreted ``substantially 
all'' to represent producers accounting for at least 85 percent of U.S. 
production of the domestic like product. Certain Orange Juice from 
Brazil: Preliminary Results of Antidumping Duty Changed Circumstances 
Review and Intent Not to Revoke, In Part, 73 FR 60241, 60242 (October 
10, 2008), unchanged in Certain Orange Juice From Brazil: Final Results 
of Antidumping Duty Changed Circumstances Review, 74 FR 4733 (January 
27, 2009). Interested parties are, therefore, requested to address the 
issue of industry support in their comments.

Public Comment

    Interested parties are invited to comment on the initiation of this 
changed circumstances review and the issue of industry support. Parties 
who submit comments or information in this proceeding are requested to 
include with their submission (1) a statement of the issue; and (2) a 
brief summary of the comments or information. All written comments may 
be submitted by interested parties not later than 14 days after the 
date of publication of this notice, in accordance with 19 CFR 351.303 
of the Department's regulations, and shall be served on all interested 
parties on the Department's service list. As noted above, in the time 
since the petitioners requested to withdraw the petition and terminate 
the suspended investigation, there have been numerous comments on this 
request filed on the record of the 2008 Suspension Agreement. If 
interested parties would like those comments to be considered for 
purposes of this changed circumstances review, they are requested to 
file the comments on the record of this proceeding.
    As soon as practicable following the receipt of any submissions 
from interested parties during the comment period, the Department will 
publish in the Federal Register a notice of preliminary results of 
changed circumstances review, in accordance with 19 CFR 351.221(c)(3), 
which will set forth the factual and legal conclusions upon which our 
preliminary results are based, and a description of any action proposed 
based on those results.
    This notice is published in accordance with sections 751(b)(1) of 
the Act and 19 CFR 351.216 and 351.221(c)(3).

    Dated: August 14, 2012.
Paul Piquado,
Assistant Secretary for Import Administration.
[FR Doc. 2012-20552 Filed 8-20-12; 8:45 am]
BILLING CODE 3510-DS-P