VawSJ, U/-. FL.J01r aind Emersma. U_.S.-Cttndian Tomato Wars


tfrtm increased imports that cause serious in-
jury to the U.S. industry The producers also
'.ou1ht pruo iiunal relief Linder Section 202(d)
of the Act, which pro% ides for provisional re-
lic for growers ol pcrish.iblc agricullurld
products pending the LumpletKion f a full 184 -
day ITC iiielsigatioii and the 60-day Pici]-
dcnitial review periodd" An affirmative in pro-
vsional relief requires the 1TC to find two
conditions present: (1) on the basis of ail-
able information, increased imports of the sub-
ject article are a substantial cause of serious
injury or threat thereof to the domestic indius-
trV. and (2) the serious iinjry is likely to be
difficult to repair or cannot be time\ prevent-
ed by tinal relief dcermiined after a full 180-
d,,l ITC imre-Iiu..tion w9
 The ITC ruled in the nIegtiie in the pro-
visional phase of the I 5 petition because of
the way ihe industry was dehned The peti-
lioncrs sought rclief for the winter Fre-h to-
niato industry, declined as those tomatoes mar-
keted in the January to April market window.
1Te ITC refused to recognize a seasonal in-
dustry, indicating that the case had to be de-
cided on the U.S. industry that included all
domestic productiirn grown Ih-rugJhoui the en-
tire year.21 Petitioner withdrew the Section
201 pliiirt I'o allowing the outcome to the pro-
visional relief" phase, Feelicg the outcome of
the provisional relief pha.'c made it diliu Lill to
wil n an d'lirin'alli in the final determination
ol the Se.iun 20] petition.22
 Imports increased qiirn in the 19 15-196'
season, and prices were again depre-sed. A
ectiion 201 petition was filed wilh the 1TC,"2
and an anliduumping petition was filed with the
U.S. Department lo Commerce." These peti-
tions sought relief for the U.S, bell pepper and

 1' 19 U.S.C. 2251.
 "Id, :2 -,;:?: l. '
 Fresh Winter Tomatoes. ITC Pub, 2.x I. Inv, No.
 1- .2I- --4 (Apr. I'995.i lIprr .
 1 Id. at 1-8 Io 14t
 Fresh Winter Tomatoes, 60 Fd. Reg. 25.24
 I' i i tlTrrninaLi,.n
 Freh Tomatocs and Bell Pepprrs 61 F.L R.-:
13.875 1 14l0 i
 S'Freh T.ri..rn.o from Mexico. 61 Fed, K4
 I Ui6X i 1 IjLh


fresh tomato industries, accepting the defini-
tion of a U.S. indtilry as lelined by the ITC
in the 15 Fresh Winter Tmatoes case.'
The petitions alleged that serious injury had
been incurred by the U.S bell pepper and to-
mato industries and the injury was caused by
increased imports.2"
 Mexican prid.liu.crs countered those peii-
tions with claims ihi-, although serious injury
might have occurred to U.S growers. injury
was mainly in Florida and was caused by
weather problems in Florida. The) also con-
tended (haI chaungc in market shares were a
result of increased demand lor Mexico's
"higher quality tomatoes" and Flrind's reluc-
lance to improu their prn iict qu;dlity with im-
proved technology (VanSickle 199,6 p 5). The
ITC decided in the ncitali e in the Srcliin 2(11
petition by a 4-1 vote in July 1996, indicating
that increased impii-1s were not causing seri-
ous injury y to U.S. producers.7 The petitioners
chose to move forward on the antidlumping
petition on fresh tomatoes following the ITC
ne-rati'e determination on the Section 201
case because the standard for) ijging injury
in an antidumping case is lower Ihin thai in a
Setlin 201 case.
 The Department of Commerce inme'.iga-
tion in the antidumping case re'ullCed in a pre-
limin.r> determination in October Jl'6 that
fresh tomatoes from ,Mexic. were being, or
were likely to be, sold in the United Statc- at
LTF'.," The DOC estimated dii iipilln ifif.rii s
to .ierapie 17 .5'. NTh case was stopped later
in October I 49t when the DOC negotiated a
suspension agrcemnien with Mexican growers
representing more than XX' of their volume."
The agreement established a floor price of
20 618 cents xpr pound for ii.po'I-nei Me\.1ian

 FVesh TornalTm.Ic an Hell Pepprs, 61 Fed. Reg
at 13,875.
 'Id.; Fresh Tomatoes and Bell Peppers, 61 Fed,
Reg Wa IS'Mit
 Fresh Tomatols and Hell PcppLer. [11(' Pub
2985 Inv. No. TA-201-66, at 1-5, 1-19
 -' Noucllli i Prelimrnari I)Deilrrllnansll of Sa es at
Less Than Fair Value and l'lpon.unlcni of |-inm. De-
temaination: Fresh Tomatoes from Mexico. 61 l-ed
KRc 'Sh-,l (194 ).
 t SLum~.n.pfi Iiel-.s.l "l'1mciXrKs. from Mexico, 61
Fed. Reg. at 56.61K--191