Changed Circumstances Review Warranted in 27-Year-Old Investigation, Exporter Says
Mexican tomato exporter NS Brands said Dec. 3 that the Commerce Department needed to consider the “prejudice to companies now in existence” that resulted from resuming an antidumping duty investigation from 1996 with the same respondents (Bioparques de Occidente v. United States, CIT Consol. # 19-00204).
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Specifically, it said, the introduction and growth of newer types of tomatoes -- smaller, "snacking" varieties of the fruit -- warrants a changed circumstances review. Otherwise, the all-others rate won't be representative of the export activity of companies such as NS Brands, it claimed.
The 1996 investigation was repeatedly put on hold due to various suspension deals between the U.S. and Mexico. In the final determination, released in October, Commerce assigned four tomato exporters an adverse facts available margin of 273.43% because it couldn’t track them down or they had gone out of business (see 2410230045).
NS Brands was allowed to intervene in pursuit of an individual rate (see 2411260021). It said it agreed with the Court of International Trade’s ruling that the department had used the investigation’s individual respondents, but claimed “Commerce summarily rejected any option for companies which did not exist during the original investigation.” As a result, it was failing in its duty to calculate dumping margins as accurately as possible, the exporter said.
It distinguished itself from the “field grown commodity products that represent the bulk of U.S. production and Mexican imports” of tomatoes. NS Brands operates “tomato production facilities” on both sides of the border that grow “smaller varieties of specialty tomatoes such a cherry, grape, and other innovative premium small size products,” it said; these “new, specialty, snacking tomatoes” didn’t exist in 1996, and are produced differently.
A changed circumstances review is warranted because the market has seen an influx of “specialty types of tomatoes relative to round, plum, and roma,” it said, and both production methods and customer demand has changed significantly since the start of the investigation in the ’90s.
“Because of the identified product mismatch, NatureSweet, a company producing and exporting almost exclusively specialty, snacking tomatoes, is subject to an all-others’ rate which is not representative of its experience as a producer/exporter of fresh tomatoes from Mexico,” it said.
“This is especially true because NatureSweet did not even exist in 1995.”