[Federal Register Volume 84, Number 43 (Tuesday, March 5, 2019)]
[Notices]
[Pages 7872-7875]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-03928]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-201-820]
Fresh Tomatoes From Mexico: Intent To Terminate Suspension
Agreement, Rescind the Sunset and Administrative Reviews, and Resume
the Antidumping Duty Investigation
AGENCY: Enforcement and Compliance, International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce (Commerce) intends to terminate the
2013 Suspension Agreement on Fresh Tomatoes from Mexico (2013
Agreement), rescind the five-year sunset review of the suspended
investigation and the administrative review of the 2013 Agreement, and
to resume the antidumping duty (AD) investigation initiated in 1996.
DATES: Applicable March 5, 2019.
FOR FURTHER INFORMATION CONTACT: Sally C. Gannon or Rebecca Lee,
Enforcement and Compliance, International Trade Administration, U.S.
Department of Commerce, 1401 Constitution Avenue NW, Washington, DC
20230; telephone: (202) 482-0162 or (202) 482-6188, respectively.
SUPPLEMENTARY INFORMATION:
Background
On April 18, 1996, Commerce initiated an AD investigation to
determine whether imports of fresh tomatoes from Mexico are being, or
are likely to be, sold in the United States at
[[Page 7873]]
less than fair value (LTFV).\1\ On May 16, 1996, the United States
International Trade Commission (ITC) notified Commerce of its
affirmative preliminary injury determination.
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\1\ See Initiation of Antidumping Duty Investigation: Fresh
Tomatoes from Mexico, 61 FR 18377 (April 25, 1996).
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On October 10, 1996, Commerce and certain tomato growers/exporters
from Mexico initialed a proposed agreement to suspend the AD
investigation. On October 28, 1996, Commerce issued its 1996
Preliminary Determination and found imports of fresh tomatoes from
Mexico were being sold at LTFV in the United States.\2\ On the same
day, Commerce and producers/exporters accounting for substantially all
imports of fresh tomatoes from Mexico signed an agreement to suspend
the investigation (1996 Agreement).\3\
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\2\ 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) (1996
Preliminary Determination).
\3\ See Suspension of Antidumping Investigation: Fresh Tomatoes
from Mexico, 61 FR 56618 (November 1, 1996).
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On May 31, 2002, certain tomato growers/exporters from Mexico
accounting for a significant percentage of all fresh tomatoes imported
into the United States from Mexico provided written notice to Commerce
of their withdrawal from the 1996 Agreement, effective July 30, 2002.
Because the 1996 Agreement would no longer cover substantially all
imports of fresh tomatoes from Mexico, effective July 30, 2002,
Commerce terminated the 1996 Agreement, terminated the sunset review of
the suspended investigation, and resumed the AD investigation.\4\
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\4\ 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).
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On November 8, 2002, Commerce and certain tomato growers/exporters
from Mexico initialed a proposed agreement suspending the resumed AD
investigation on imports of fresh tomatoes from Mexico. On December 4,
2002, Commerce and producers/exporters accounting for substantially all
imports of fresh tomatoes from Mexico signed a new suspension agreement
(2002 Agreement).\5\
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\5\ See Suspension of Antidumping Investigation: Fresh Tomatoes
from Mexico, 67 FR 77044 (December 16, 2002).
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On November 26, 2007, certain tomato growers/exporters from Mexico
accounting for a significant percentage of all fresh tomatoes imported
into the United States provided written notice to Commerce of their
withdrawal from the 2002 Agreement, effective 90 days from the date of
their withdrawal letter (i.e., February 24, 2008), or earlier, at
Commerce's discretion.
On November 28, 2007, Commerce and certain tomato growers/exporters
from Mexico initialed a new proposed agreement to suspend the AD
investigation on imports of fresh tomatoes from Mexico. On December 3,
2007, Commerce released the initialed agreement to interested parties
for comment. On December 17 and 18, 2007, several interested parties
filed comments in support of the initialed agreement.
Because the 2002 Agreement would no longer cover substantially all
imports of fresh tomatoes from Mexico, Commerce published a notice of
intent to terminate the 2002 Agreement, intent to terminate the five-
year sunset review of the suspended investigation, and intent to resume
the AD investigation.\6\ On January 16, 2008, Commerce published a
notice of termination of the 2002 Agreement, termination of the five-
year sunset review of the suspended investigation, and resumption of
the AD investigation, effective January 18, 2008.\7\ On January 22,
2008, Commerce signed a new suspension agreement (2008 Agreement) with
producers/exporters accounting for substantially all imports of fresh
tomatoes from Mexico.\8\
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\6\ 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).
\7\ 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).
\8\ See Suspension of Antidumping Investigation: Fresh Tomatoes
from Mexico, 73 FR 4831 (January 28, 2008).
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On August 15, 2012, certain growers/exporters of fresh tomatoes
from Mexico filed a letter with Commerce requesting consultations under
Section IV.G.\9\ of the 2008 Agreement, and Commerce agreed to consult.
As a result of these consultations, on February 2, 2013, Commerce and
tomato growers/exporters from Mexico 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 AD
investigation on fresh tomatoes from Mexico. On February 08, 2013,
Commerce published a notice of intent to terminate the 2008 Agreement,
intent to terminate the five-year sunset review of the suspended
investigation, and intent to resume the AD investigation.\10\ On March
1, 2013, Commerce issued a notice of termination of the 2008 Agreement,
termination of the five-year sunset review of the suspended
investigation, and resumption of the AD investigation.\11\ On March 4,
2013, Commerce and producers/exporters accounting for substantially all
imports of fresh tomatoes from Mexico signed a new suspension agreement
(2013 Agreement).\12\
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\9\ Section IV.G. of the 2008 Agreement states that Commerce
will consult with signatory producers/exporters regarding the
operations of the 2008 Agreement. A party may request such
consultations in any April or September (i.e. prior to the beginning
of each season) following the first year of the signing of the 2008
Agreement.
\10\ See Fresh Tomatoes from Mexico: Intent To Terminate
Suspension Agreement and Resume Antidumping Investigation and Intent
To Terminate Sunset Review, 78 FR 9366 (February 8, 2013).
\11\ See Fresh Tomatoes from Mexico: Termination of Suspension
Agreement, Termination of Five-Year Sunset Review, and Resumption of
Antidumping Investigation, 78 FR 14771 (March 7, 2013).
\12\ See Fresh Tomatoes from Mexico: Suspension of Antidumping
Investigation,78 FR 14967 (March 8, 2013).
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On January 9, 2018, Commerce issued a letter that formally opened
consultations with the Mexican tomato growers/exporters to negotiate
possible revisions to the 2013 Agreement.\13\ Since that time, Commerce
has continued to negotiate with the Mexican growers/exporters and, in
parallel, has continually consulted with representatives of the
domestic industry.
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\13\ See Letter from Commerce to CAADES et al., ``Consultations
on the 2013 Agreement Suspending the Antidumping Investigation on
Fresh Tomatoes from Mexico,'' dated January 9, 2018.
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On February 1, 2018, Commerce initiated a five-year sunset review
of the suspended investigation.\14\ On March 29, 2018, the Florida
Tomato Exchange (FTE), a member of the U.S. petitioning industry, filed
a request that Commerce conduct an administrative review on growers/
exporters of fresh tomatoes from Mexico covered by the 2013 Agreement.
On May 2, 2018, Commerce initiated the administrative review of the
2013 Agreement.\15\ On August 27, 2018, Commerce published in the
Federal Register the preliminary results of the five-year sunset review
of the suspended investigation.\16\ Commerce preliminarily found
dumping was likely to continue or recur at weighted-average margins up
to 188.14 percent.
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\14\ See Initiation of Five-Year (Sunset) Reviews, 83 FR 4641
(February 1, 2018).
\15\ See Initiation of Antidumping and Countervailing Duty
Administrative Reviews, 83 FR 19215 (May 2, 2018).
\16\ See Fresh Tomatoes from Mexico: Preliminary Results of the
Five-Year Sunset Review of the 2013 Suspension Agreement on Fresh
Tomatoes from Mexico 83 FR 43642 (August 27, 2018).
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On November 14, 2018, the FTE filed a request that Commerce
terminate the
[[Page 7874]]
2013 Agreement and resume the AD investigation under Section VI.B of
the 2013 Agreement.\17\ Section VI.B of the 2013 Agreement states that
``the signatories or the Department may withdraw from this Agreement
upon ninety days written notice to the other party.'' On November 27,
2018, the Fresh Produce Association of the Americas, filed a rebuttal
to FTE's request to terminate.\18\ On November 26, 2018 and November
28, 2018, respectively, Confederaci[oacute]n de Asociaciones
Agr[iacute]colas del Estado de Sinaloa, A.C., Consejo Agr[iacute]cola
de Baja California, A.C., Asociaci[oacute]n Mexicana de Horticultura
Protegida, A.C., Asociaci[oacute]n de Productores de Hortalizas del
Yaqui y Mayo, and Sistema Producto Tomate (CAADES et al. or the Mexican
growers) submitted responses to FTE's previous request for Commerce to
terminate the 2013 Agreement.19 20 On December 18, 2018, NS
Brands, Ltd (NatureSweet), a signatory to the 2013 Agreement, filed a
letter in support of the November 28, 2018 response by the Mexican
growers.\21\
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\17\ See Letter to Wilbur Ross, Secretary of Commerce, from the
FTE, ``Fresh Tomatoes from Mexico: Request to Terminate Antidumping
Suspension Agreement,'' dated November 14, 2018.
\18\ See Letter to Wilbur Ross, Secretary of Commerce, from the
Fresh Produce Association of the Americas, ``Re: Fresh Tomatoes from
Mexico: FTE's Misleading Request to Terminate Agreement,'' dated
November 27, 2018.
\19\ See Letter to Wilbur Ross, Secretary of Commerce, from
CAADES et al., ``2013 Suspension Agreement on Fresh Tomatoes from
Mexico,'' dated November 26, 2018.
\20\ See Letter to Wilbur Ross, Secretary of Commerce, from
CAADES et al., ``2013 Suspension Agreement on Fresh Tomatoes from
Mexico,'' dated November 28, 2018.
\21\ See Letter to Wilbur Ross, Secretary of Commerce, from NS
Brands, Ltd., ``2013 Suspension Agreement on Fresh Tomatoes from
Mexico: NS Brands' Response to Petitions Request to Terminate 2013
Suspension Agreement,'' dated December 18, 2018.
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Scope of the Agreement
The merchandise subject to the 2013 Agreement 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 the 2013
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
the 2013 Agreement.
Tomatoes imported from Mexico covered by the 2013 Agreement are
classified under the following subheading of the Harmonized Tariff
Schedule of the United States (HTSUS), according to the season of
importation: 0702. Although the HTSUS numbers are provided for
convenience and customs purposes, the written description of the scope
of the 2013 Agreement is dispositive.
Intent To Terminate Suspension Agreement and Resume the Antidumping
Investigation
On February 6, 2019, Commerce gave notice of intent to withdraw
from the 2013 Agreement to the Mexican signatories.22 23 In
accordance with Section VI.B of the 2013 Agreement, Commerce's
withdrawal from the 2013 Agreement shall be effective on May 7, 2019
which is 90 days after such notice.\24\ If parties do not reach a new
suspension agreement on or before May 7, 2019, Commerce intends to
terminate the 2013 Agreement and resume the underlying AD
investigation, in 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, Commerce will 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, May 7, 2019. As explained
in its 1996 Preliminary Determination, Commerce postponed the final
determination until the 135th day after the date of the preliminary
determination.\25\ Commerce, therefore, will issue its final
determination in a resumed investigation 135 days after the affirmative
preliminary determination (i.e. the effective date of termination of
the 2013 Agreement on May 7, 2019), unless a new suspension agreement
becomes effective. However, if Commerce and producers/exporters
accounting for substantially all imports 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 will be suspended.
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\22\ See Letter to Interested Parties from P. Lee Smith, Deputy
Assistant Secretary for Policy & Negotiations, re ``Withdrawal from
the 2013 Suspension Agreement on Fresh Tomatoes from Mexico,'' dated
February 6, 2019.
\23\ See Ex Parte Memorandums for Telephone Calls to Interested
Parties, filed February 13, 2019.
\24\ Ninety days from December 31, 2018 falls on March 31, 2019.
Because this date falls on a non-business day (i.e., the weekend),
consistent with Commerce's practice, the period will run until the
next business day. See Notice of Clarification: Application of
``Next Business Day'' Rule for Administrative Determination
Deadlines Pursuant to the Tariff Act of 1930, As Amended, 70 FR
24533 (May 10, 2005).
\25\ See 1996 Preliminary Determination at 56609.
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On February 14, 2019, and February 19, 2019, the Mexican growers
and NatureSweet, respectively, filed comments in response to Commerce's
intent to withdraw.26 27
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\26\ See Letter to Wilbur Ross, Secretary of Commerce, from
CAADES et al., ``2013 Suspension Agreement on Fresh Tomatoes from
Mexico,'' dated February 14, 2019.
\27\ See Letter to Wilbur Ross, Secretary of Commerce, from
NatureSweet, ``2013 Suspension Agreement on Fresh Tomatoes from
Mexico: NS Brands' Response to the Commerce Department's letter of
Withdrawal from 2013 Suspension Agreement,'' dated February 19,
2019.
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Intent To Rescind the Five-Year Sunset Review
On February 1, 2018, Commerce initiated a five-year sunset review
of the suspended AD investigation on fresh tomatoes from Mexico
pursuant to section 751(c) of the Act. If Commerce terminates the 2013
Agreement, there will no longer be a suspended investigation of which
to conduct a sunset review. Therefore, Commerce will rescind the sunset
review of the suspended AD investigation on fresh tomatoes from Mexico,
effective on the date of termination of the 2013 Agreement, if the 2013
Agreement is terminated.
Intent To Rescind the Administrative Review
On May 2, 2018, Commerce initiated an administrative review of the
2013 Agreement for the period March 1, 2017 through February 28, 2018.
If Commerce terminates the 2013 Agreement, the ongoing administrative
review would be moot. Therefore, Commerce will rescind the
administrative review of the 2013 Agreement, effective on the date of
termination of the 2013 Agreement.
International Trade Commission
Commerce has notified the ITC of its intent to terminate the 2013
Agreement and resume the suspended AD investigation.\28\ If Commerce
resumes the suspended AD investigation, and if Commerce makes a final
affirmative determination in the investigation, the
[[Page 7875]]
ITC is scheduled to make its final determination concerning injury
within 45 days of publication of Commerce's final determination. If
both Commerce's and the ITC's final determinations are affirmative,
Commerce will issue an AD order. However, as indicated above, if
Commerce and producers/exporters accounting for substantially all
imports 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 will be suspended.
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\28\ See Letter to Michael Anderson, Director of Office of
Investigations, from P. Lee Smith, Deputy Assistant Secretary for
Policy & Negotiations, re ``Fresh Tomatoes from Mexico: Withdrawal
from the 2013 Suspension Agreement,'' dated February 6, 2019.
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Suspension of Liquidation
If Commerce terminates the 2013 Agreement and resumes the suspended
AD investigation as described above, Commerce 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 2013 Agreement. CBP shall require AD 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.\29\
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\29\ See 1996 Preliminary Determination.
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Administrative Protective Order Access and Applicable Regulations
The following requirements will apply if and during such time as
the suspended investigation is resumed. Because of the significant
changes made to the administrative protective order (APO) process since
initiation of the investigation in 1996, Commerce 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 Commerce's website, 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 Commerce's
regulations currently in effect.\30\
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\30\ See section 777(c)(1) of the Act and 19 CFR 351.103,
351.304, 351.305 and 351.306.
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In addition, because of the significant changes made to Commerce's
filing and certification requirements since the investigation,
including electronic filing, Commerce intends to apply its current
regulations and practices with regard to filing and certification,
should the AD investigation be resumed.\31\ However, with respect to
all other procedures for the conduct of any resumed investigation
generally, including any possible suspension thereof, Commerce's
regulations in effect in 1996 shall govern.\32\
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\31\ See 19 CFR 351.303(b) and (g).
\32\ See 19 CFR 351.701; San Vicente Camalu SPR de Ri v. United
States, 491 F.Supp.2d 1186 (CIT 2007).
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This determination is issued and published in accordance with
section 733(f) and 734(i) of the Act.
Dated: February 27, 2019.
Gary Taverman,
Deputy Assistant Secretary for Antidumping and Countervailing Duty
Operations, performing the non-exclusive functions and duties of the
Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2019-03928 Filed 3-4-19; 8:45 am]
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