Fresh Tomatoes From Mexico: Intent To Terminate Suspension Agreement and Resume Antidumping Investigation and Intent To Terminate Sunset Review, 9366-9368 [2013-02914]

Agencies

• DEPARTMENT OF COMMERCE
• International Trade Administration

[Federal Register Volume 78, Number 27 (Friday, February 8, 2013)]
[Notices]
[Pages 9366-9368]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-02914]


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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