Fresh Tomatoes From Mexico: Termination of Suspension Agreement, Rescission of Administrative Review, and Continuation of the Antidumping Duty Investigation, 20858-20861 [2019-09786]
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20858
Federal Register / Vol. 84, No. 92 / Monday, May 13, 2019 / Notices
(CRU), Room B8024 of the main
Department of Commerce building, as
well as electronically via Enforcement
and Compliance’s Antidumping and
Countervailing Duty Centralized
Electronic Service System (ACCESS).
ACCESS is available to registered users
at https://access.trade.gov and in the
CRU. In addition, a complete version of
the Issues and Decision Memorandum
can be accessed directly on the internet
at https://enforcement.trade.gov/frn/
index.html. The signed Issues and
Decision Memorandum and the
electronic version of the Issues and
Decision Memorandum are identical in
content.
determined that Fedmet, Fengchi, and
RHI had no reviewable entries,
shipments, or sales of the subject
merchandise to the United States during
the POR, any suspended entries that
entered under their case numbers (i.e.,
at that exporter’s rate) will be liquidated
at the China-wide entity rate.9 We will
instruct CBP to liquidate entries from
the China-wide entity at the current rate
for the China-wide entity (i.e., 236.00
percent). Commerce intends to issue
appropriate assessment instructions to
CBP 15 days after the publication date
of the final results of this administrative
review.
Final Determination of No Shipments
Commerce preliminarily found that
Fedmet, Fengchi Imp. and Exp. Co., Ltd.
of Haicheng City, Fengchi Mining Co.,
Ltd. of Haicheng City, and Fengchi
Refractories Co., of Haicheng City
(collectively, Fengchi), and RHI
Refractories Liaoning Co., Ltd. (RHI) had
no reviewable entries, shipments, or
sales of the subject merchandise to the
United States during the POR.6 After the
Preliminary Results, with respect to
Fengchi and RHI, no party commented
on our preliminary no shipments
finding, nor has any party submitted
record evidence which would call this
finding into question. Therefore, for the
final results, we continue to find that
Fengchi and RHI had no shipments of
subject merchandise during the POR.
With respect to Fedmet, we placed entry
packages obtained from Customs and
Border Protection (CBP) on the record of
this review, and interested parties
submitted comments on this
information.7 As discussed in the Issues
and Decision Memorandum, we
continue to find that Fedmet also did
not have any reviewable entries,
shipments, or sales of subject
merchandise to the United States during
the POR.8 Consistent with our practice,
we will issue appropriate instructions to
U.S. Customs and Border Protection
(CBP) based on our final results.
Cash Deposit Requirements
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Assessment Rates
We have not calculated any
assessment rates in this administrative
review. Pursuant to Commerce’s
assessment practice, because we have
6 See Preliminary Results at ‘‘Preliminary
Determination of No Shipments.’’
7 See Memo to the File, ‘‘Placement of U.S.
Customs and Border Protection (CBP) Entry
Summary Packages Regarding Fedmet Resources
Corporation on the Record of the Administrative
Review,’’ dated December 4, 2018 (CBP Entry
Package Memo); the petitioners’ December 14, 2018
submission; Fedmet’s December 14, 2018
submission.
8 See Issues and Decision Memorandum.
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The following cash deposit
requirements will be effective upon
publication of the final results of this
administrative review for shipments of
the subject merchandise from China
entered, or withdrawn from warehouse,
for consumption on or after the
publication date of this notice, as
provided by section 751(a)(2)(C) of the
Act: (1) For previously investigated or
reviewed Chinese and non-Chinese
exporters that received a separate rate in
a prior segment of this proceeding, the
cash deposit rate will continue to be the
existing exporter-specific rate published
for the most recently completed period;
(2) for all Chinese exporters of subject
merchandise that have not been found
to be entitled to a separate rate, the cash
deposit rate will be the rate previously
established for the China-wide entity
(i.e., 236.00 percent); and (3) for all nonChinese exporters of subject
merchandise which have not received
their own rate, the cash deposit rate will
be the rate applicable to the Chinese
exporter that supplied that non-Chinese
exporter. These deposit requirements,
when imposed, shall remain in effect
until further notice.
This notice also serves as a final
reminder to importers of their
responsibility under 19 CFR
351.402(f)(2) to file a certificate
regarding the reimbursement of
antidumping duties prior to liquidation
of the relevant entries during this
review period. Failure to comply with
this requirement could result in
Commerce’s presumption that
reimbursement of antidumping duties
occurred and the subsequent assessment
of double antidumping duties.
9 See Non-Market Economy Antidumping
Proceedings: Assessment of Antidumping Duties, 76
FR 65694 (October 24, 2011).
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This notice also serves as the only
reminder to parties subject to
administrative protective order (APO) of
their responsibility concerning the
return or destruction of proprietary
information disclosed under APO in
accordance with 19 CFR 351.305(a)(3).
Timely written notification of the return
or destruction of APO materials or
conversion to judicial protective order is
hereby requested. Failure to comply
with the regulations and terms of an
APO is a violation subject to sanction.
We are issuing and publishing this
notice in accordance with sections
751(a)(1) and 777(1) of the Tariff Act of
1930, as amended, and 19 CFR
351.213(d)(4).
Dated: May 7, 2019.
Jeffrey I. Kessler,
Assistant Secretary for Enforcement and
Compliance.
Appendix
List of Topics Discussed in the Final
Decision Memorandum
I. Summary
II. Background
III. Scope of the Order
IV. Discussion of the Issue
V. Discussion of the Issue: Treatment of
Fedmet
VI. Recommendation
[FR Doc. 2019–09785 Filed 5–10–19; 8:45 am]
BILLING CODE 3510–DS–P
DEPARTMENT OF COMMERCE
International Trade Administration
[A–201–820]
Fresh Tomatoes From Mexico:
Termination of Suspension Agreement,
Rescission of Administrative Review,
and Continuation of the Antidumping
Duty Investigation
Enforcement and Compliance,
International Trade Administration,
Department of Commerce.
AGENCY:
Notification to Importers
PO 00000
Administrative Protective Orders
Applicable May 13, 2019.
On February 6, 2019, the
Department of Commerce (Commerce)
gave 90 days’ notice of intent to
withdraw from the 2013 Suspension
Agreement on Fresh Tomatoes from
Mexico (2013 Agreement), terminate the
2013 Agreement, and continue the
antidumping duty (AD) investigation
initiated in 1996. Because a new
suspension agreement has not been
signed, Commerce is withdrawing from
and terminating the suspension
agreement, rescinding the
administrative review of the 2013
DATES:
SUMMARY:
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Agreement, and continuing the
antidumping duty (AD) investigation.
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
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.
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
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
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
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 fiveyear 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
On August 15, 2012, certain growers/
exporters of fresh tomatoes from Mexico
filed a letter with Commerce requesting
1 See Initiation of Antidumping Duty
Investigation: Fresh Tomatoes from Mexico, 61 FR
18377 (April 25, 1996).
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).
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).
5 See Suspension of Antidumping Investigation:
Fresh Tomatoes from Mexico, 67 FR 77044
(December 16, 2002).
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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20859
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 8,
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
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
representatives of the Mexican growers/
exporters and, in parallel, has
continually consulted with
representatives of the domestic
industry.
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
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).
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.
14 See Initiation of Five-Year (Sunset) Reviews, 83
FR 4641 (February 1, 2018).
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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
On November 14, 2018, the FTE filed
a request that Commerce terminate the
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, Confederacio´n de
Asociaciones Agrı´colas del Estado de
Sinaloa, A.C., Consejo Agrı´cola de Baja
California, A.C., Asociacio´n Mexicana
de Horticultura Protegida, A.C.,
Asociacio´n de Productores de Hortalizas
del Yaqui y Mayo, and Sistema
Producto Tomate (collectively, 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 On December 27, 2018,
Commerce published in the Federal
Register the final results of the five-year
15 See Initiation of Antidumping and
Countervailing Duty Administrative Reviews
(Initiation of Administrative Review), 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).
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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sunset review of the suspended
investigation on fresh tomatoes from
Mexico, finding that termination of the
suspended investigation would be likely
to lead to continuation or recurrence of
dumping.22
On February 6, 2019, in accordance
with Section VI.B of the 2013
Agreement, Commerce notified Mexican
signatories that Commerce intends to
withdraw from the 2013 Agreement.23
Since the notification, as noted above,
Commerce has held consultations with
representatives of the Mexican growers/
exporters and the domestic industry to
discuss a possible new suspension
agreement.
Scope of the Investigation
The merchandise subject to the
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
the investigation.
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 investigation 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 this investigation is dispositive.
Termination of Suspension Agreement
and Continuation of the AD
Investigation
In accordance with Section VI.B of the
2013 Agreement, Commerce is
22 See Fresh Tomatoes from Mexico: Final Results
of the Full Sunset Review of the Suspended
Antidumping Duty Investigation, 83 FR 66680
(December 27, 2018).
23 See Fresh Tomatoes from Mexico: Intent To
Terminate Suspension Agreement, Rescind the
Sunset and Administrative Reviews, and Resume
the Antidumping Duty Investigation, 84 FR 7872
(March 5, 2019).
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withdrawing from the 2013 Agreement,
effective May 7, 2019, which is 90 days
after our February 6, 2019 notice to the
signatories. Accordingly, Commerce is
terminating the 2013 Agreement,
effective May 7, 2019, and continuing
the underlying AD investigation. The
statute does not identify the timing for
completion of the investigation in this
particular scenario. Therefore, we are
looking to section 734(i)(1)(B) of the
Tariff Act of 1930, as amended (the Act),
for guidance. Consistent with section
734(i)(1)(B) of the Act, Commerce will
continue 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 previously postponed the
final determination until the 135th day
after the date of the preliminary
determination.24 Commerce, therefore,
intends to issue its final determination
in the investigation 135 days after the
effective date of withdrawal from and
termination of the 2013 Agreement, i.e.,
by September 19, 2019, unless a new
suspension agreement becomes effective
prior to or on this date. 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 continued investigation will be
suspended.
Rescission of 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, 2018.25 Because
Commerce has terminated the 2013
Agreement, there is no longer an
agreement of which to conduct an
administrative review. Therefore,
Commerce is rescinding the
administrative review of the 2013
Agreement, effective on the date of
termination of the 2013 Agreement, i.e.,
May 7, 2019.
Period of Investigation
The original period of investigation
was March 1, 1995, through February
29, 1996. Due to the unusual procedural
posture of this proceeding, in which we
are terminating a suspension agreement
and continuing an investigation that
covers a period of investigation that
dates back more than 23 years,
24 See
1996 Preliminary Determination at 56609.
Initiation of Administrative Review, 83 FR
at 19217.
25 See
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Commerce will be requesting
information corresponding to the most
recent four full quarters, i.e., April 1,
2018 through March 31, 2019.
Respondent Selection
In light of the unusual procedural
posture of this proceeding, Commerce
finds it appropriate to reconsider
respondent selection. Commerce
intends to evaluate U.S. Customs and
Border Protection (CBP) data for U.S.
imports of fresh tomatoes from Mexico
for the most recent four quarters under
the appropriate Harmonized Tariff
Schedule of the United States (HTSUS)
numbers listed in the ‘‘Scope of the
Investigation’’ section above and select
mandatory respondents in accordance
with section 777A(c) of the Act.
We are releasing CBP data under
Administrative Protective Order (APO)
to all parties with access to information
protected by APO concurrently with the
issuance of this notice.
Interested parties wishing to comment
on the CBP data must do so within two
business days of the publication date of
this notice. Comments must be filed
electronically using Commerce’s
electronic records system, ACCESS at
https://access.trade.gov in accordance
with 19 CFR 351.303.26 An
electronically filed document must be
received successfully in its entirety by
ACCESS no later than 5:00 p.m. Eastern
Time, two business days after the
publication date of this notice.
Suspension of Liquidation
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 May 7, 2019,
the effective date of the termination of
the 2013 Suspension Agreement. CBP
shall require antidumping duty cash
deposits or bonds for entries of the
subject merchandise based on the
preliminary dumping margins, which
are as follows:
Weightedaverage
percentage
margin
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Grower/exporter
San Vincente Camalu ...........................
Exportadora Agricola Sacramento S.A.
de C.V.27 ............................................
Arturo Lomeli Villalobas S.A. de C.V ....
Eco-Cultivos S.A. de C.V ......................
Productora Agricola Industrial del
Noroeste, S.A. de C.V.28 ...................
Administradora Horticola del Tamazula
Agricola Yory, S. de P.R. de R.I ...........
4.16
11.89
26.97
188.45
10.26
28.30
11.95
26 See Antidumping and Countervailing Duty
Proceedings: Electronic Filing Procedures;
Administrative Protective Order Procedures, 76 FR
39263 (July 6, 2011).
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Weightedaverage
percentage
margin
Grower/exporter
All Others ..............................................
17.56
International Trade Commission
Commerce will notifythe International
Trade Commission (ITC) of its
withdrawal from and termination of the
2013 Suspension Agreement and
continuation of the AD investigation. If
Commerce makes a final affirmative
determination, the ITC is scheduled to
make its final determination concerning
injury within 45 days after publication
of Commerce’s final determination. If
both Commerce’s and the ITC’s final
determinations are affirmative,
Commerce will issue an AD order.
Filing Requirements
All submissions to Commerce must be
filed electronically using Enforcement
and Compliance’s Antidumping Duty
and Countervailing Duty Centralized
Electronic Service System (ACCESS).29
An electronically filed document must
be received successfully in its entirety
by the time and date it is due.
Documents exempted from the
electronic submission requirements
must be filed manually (i.e., in paper
form) with Enforcement and
Compliance’s APO/Dockets Unit, Room
18022, U.S. Department of Commerce,
1401 Constitution Avenue NW,
Washington, DC 20230, and stamped
with the date and time of receipt by the
applicable deadlines.
Certification Requirements
Any party submitting factual
information in an AD or CVD
proceeding must certify to the accuracy
and completeness of that information.30
27 Exportadora Agricola Sacramento S.A. de C.V.
(Sacramento) is formerly known as Ernesto
Fernando Echavarria Salazar Grupo Solidario. See
Commerce’s verification agenda to Sacramento
dated October 11, 2002, and the Sacramento
verification report dated November 12, 2002, at
Home Market Exhibit 1.
28 Productora Agricola Industrial del Noroeste,
S.A. de C.V. (Noroeste) was formerly known as
Ranchos Los Pinos S. de R.L. de C.V. See Noroeste’s
entry of appearance dated October 18, 2002, the
Noroeste cost verification report dated November
12, 2002, at 3, and the Noroeste sales verification
report dated November 13, 2002, at 1, 4.
29 See Antidumping and Countervailing Duty
Proceedings: Electronic Filing Procedures;
Administrative Protective Order Procedures, 76 FR
39263 (July 6, 2011); see also Enforcement and
Compliance; Change of Electronic Filing System
Name, 79 FR 69046 (November 20, 2014) for details
of Commerce’s electronic filing requirements,
effective August 5, 2011. Information on help using
ACCESS can be found at https://access.trade.gov/
help.aspx and a handbook can be found at https://
access.trade.gov/help/Handbook%20on
%20Electronic%20Filling%20Procedures.pdf.
30 See section 782(b) of the Act.
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20861
Parties must use the certification
formats provided in 19 CFR
351.303(g).31 Commerce intends to
reject factual submissions if the
submitting party does not comply with
the applicable revised certification
requirements.
Administrative Protective Order Access
and Letters of Appearance
Commerce will issue new
administrative protective orders (APO)
for the continued investigation that will
supersede the previously issued firmspecific 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 the procedures outlined in
Commerce’s regulations at 19 CFR
351.305. These applications must be
filed electronically using ACCESS at
https://access.trade.gov. Those
procedures apply to this continued
investigation. Parties wishing to
participate in this continued
investigation should ensure that they
meet the requirements of these
procedures, e.g., the filing of separate
letters of appearance as discussed at 19
CFR 351.103(d).
This determination is issued and
published in accordance with section
733(f) and 777(i)(1) of the Act.
Dated: May 7, 2019.
Jeffrey I. Kessler,
Assistant Secretary for Enforcement and
Compliance.
[FR Doc. 2019–09786 Filed 5–10–19; 8:45 am]
BILLING CODE 3510–DS–P
31 See also Certification of Factual Information to
Import Administration During Antidumping and
Countervailing Duty Proceedings, 78 FR 42678 (July
17, 2013) (Final Rule). Answers to frequently asked
questions regarding the Final Rule are available at
https://enforcement.trade.gov/tlei/notices/factual_
info_final_rule_FAQ_07172013.pdf.
E:\FR\FM\13MYN1.SGM
13MYN1
]]>Agencies
[Federal Register Volume 84, Number 92 (Monday, May 13, 2019)]
[Notices]
[Pages 20858-20861]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-09786]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-201-820]
Fresh Tomatoes From Mexico: Termination of Suspension Agreement,
Rescission of Administrative Review, and Continuation of the
Antidumping Duty Investigation
AGENCY: Enforcement and Compliance, International Trade Administration,
Department of Commerce.
DATES: Applicable May 13, 2019.
SUMMARY: On February 6, 2019, the Department of Commerce (Commerce)
gave 90 days' notice of intent to withdraw from the 2013 Suspension
Agreement on Fresh Tomatoes from Mexico (2013 Agreement), terminate the
2013 Agreement, and continue the antidumping duty (AD) investigation
initiated in 1996. Because a new suspension agreement has not been
signed, Commerce is withdrawing from and terminating the suspension
agreement, rescinding the administrative review of the 2013
[[Page 20859]]
Agreement, and continuing the antidumping duty (AD) investigation.
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 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).
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------
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 8, 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 representatives of 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
[[Page 20860]]
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\
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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 (Initiation of Administrative Review), 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).
---------------------------------------------------------------------------
On November 14, 2018, the FTE filed a request that Commerce
terminate the 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 (collectively, 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\ On December 27, 2018, Commerce published in the Federal
Register the final results of the five-year sunset review of the
suspended investigation on fresh tomatoes from Mexico, finding that
termination of the suspended investigation would be likely to lead to
continuation or recurrence of dumping.\22\
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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.
\22\ See Fresh Tomatoes from Mexico: Final Results of the Full
Sunset Review of the Suspended Antidumping Duty Investigation, 83 FR
66680 (December 27, 2018).
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On February 6, 2019, in accordance with Section VI.B of the 2013
Agreement, Commerce notified Mexican signatories that Commerce intends
to withdraw from the 2013 Agreement.\23\ Since the notification, as
noted above, Commerce has held consultations with representatives of
the Mexican growers/exporters and the domestic industry to discuss a
possible new suspension agreement.
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\23\ See Fresh Tomatoes from Mexico: Intent To Terminate
Suspension Agreement, Rescind the Sunset and Administrative Reviews,
and Resume the Antidumping Duty Investigation, 84 FR 7872 (March 5,
2019).
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Scope of the Investigation
The merchandise subject to the 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 the
investigation.
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 investigation 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 this investigation is dispositive.
Termination of Suspension Agreement and Continuation of the AD
Investigation
In accordance with Section VI.B of the 2013 Agreement, Commerce is
withdrawing from the 2013 Agreement, effective May 7, 2019, which is 90
days after our February 6, 2019 notice to the signatories. Accordingly,
Commerce is terminating the 2013 Agreement, effective May 7, 2019, and
continuing the underlying AD investigation. The statute does not
identify the timing for completion of the investigation in this
particular scenario. Therefore, we are looking to section 734(i)(1)(B)
of the Tariff Act of 1930, as amended (the Act), for guidance.
Consistent with section 734(i)(1)(B) of the Act, Commerce will continue
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 previously postponed the final determination
until the 135th day after the date of the preliminary
determination.\24\ Commerce, therefore, intends to issue its final
determination in the investigation 135 days after the effective date of
withdrawal from and termination of the 2013 Agreement, i.e., by
September 19, 2019, unless a new suspension agreement becomes effective
prior to or on this date. 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
continued investigation will be suspended.
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\24\ See 1996 Preliminary Determination at 56609.
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Rescission of 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.\25\ Because Commerce has terminated the 2013 Agreement, there is
no longer an agreement of which to conduct an administrative review.
Therefore, Commerce is rescinding the administrative review of the 2013
Agreement, effective on the date of termination of the 2013 Agreement,
i.e., May 7, 2019.
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\25\ See Initiation of Administrative Review, 83 FR at 19217.
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Period of Investigation
The original period of investigation was March 1, 1995, through
February 29, 1996. Due to the unusual procedural posture of this
proceeding, in which we are terminating a suspension agreement and
continuing an investigation that covers a period of investigation that
dates back more than 23 years,
[[Page 20861]]
Commerce will be requesting information corresponding to the most
recent four full quarters, i.e., April 1, 2018 through March 31, 2019.
Respondent Selection
In light of the unusual procedural posture of this proceeding,
Commerce finds it appropriate to reconsider respondent selection.
Commerce intends to evaluate U.S. Customs and Border Protection (CBP)
data for U.S. imports of fresh tomatoes from Mexico for the most recent
four quarters under the appropriate Harmonized Tariff Schedule of the
United States (HTSUS) numbers listed in the ``Scope of the
Investigation'' section above and select mandatory respondents in
accordance with section 777A(c) of the Act.
We are releasing CBP data under Administrative Protective Order
(APO) to all parties with access to information protected by APO
concurrently with the issuance of this notice.
Interested parties wishing to comment on the CBP data must do so
within two business days of the publication date of this notice.
Comments must be filed electronically using Commerce's electronic
records system, ACCESS at https://access.trade.gov in accordance with 19
CFR 351.303.\26\ An electronically filed document must be received
successfully in its entirety by ACCESS no later than 5:00 p.m. Eastern
Time, two business days after the publication date of this notice.
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\26\ See Antidumping and Countervailing Duty Proceedings:
Electronic Filing Procedures; Administrative Protective Order
Procedures, 76 FR 39263 (July 6, 2011).
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Suspension of Liquidation
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 May
7, 2019, the effective date of the termination of the 2013 Suspension
Agreement. CBP shall require antidumping duty cash deposits or bonds
for entries of the subject merchandise based on the preliminary dumping
margins, which are as follows:
------------------------------------------------------------------------
Weighted-
average
Grower/exporter percentage
margin
------------------------------------------------------------------------
San Vincente Camalu......................................... 4.16
Exportadora Agricola Sacramento S.A. de C.V.\27\............ 11.89
Arturo Lomeli Villalobas S.A. de C.V........................ 26.97
Eco-Cultivos S.A. de C.V.................................... 188.45
Productora Agricola Industrial del Noroeste, S.A. de 10.26
C.V.\28\...................................................
Administradora Horticola del Tamazula....................... 28.30
Agricola Yory, S. de P.R. de R.I............................ 11.95
All Others.................................................. 17.56
------------------------------------------------------------------------
International Trade Commission
Commerce will notify the International Trade Commission (ITC) of
its withdrawal from and termination of the 2013 Suspension Agreement
and continuation of the AD investigation. If Commerce makes a final
affirmative determination, the ITC is scheduled to make its final
determination concerning injury within 45 days after publication of
Commerce's final determination. If both Commerce's and the ITC's final
determinations are affirmative, Commerce will issue an AD order.
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\27\ Exportadora Agricola Sacramento S.A. de C.V. (Sacramento)
is formerly known as Ernesto Fernando Echavarria Salazar Grupo
Solidario. See Commerce's verification agenda to Sacramento dated
October 11, 2002, and the Sacramento verification report dated
November 12, 2002, at Home Market Exhibit 1.
\28\ Productora Agricola Industrial del Noroeste, S.A. de C.V.
(Noroeste) was formerly known as Ranchos Los Pinos S. de R.L. de
C.V. See Noroeste's entry of appearance dated October 18, 2002, the
Noroeste cost verification report dated November 12, 2002, at 3, and
the Noroeste sales verification report dated November 13, 2002, at
1, 4.
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Filing Requirements
All submissions to Commerce must be filed electronically using
Enforcement and Compliance's Antidumping Duty and Countervailing Duty
Centralized Electronic Service System (ACCESS).\29\ An electronically
filed document must be received successfully in its entirety by the
time and date it is due. Documents exempted from the electronic
submission requirements must be filed manually (i.e., in paper form)
with Enforcement and Compliance's APO/Dockets Unit, Room 18022, U.S.
Department of Commerce, 1401 Constitution Avenue NW, Washington, DC
20230, and stamped with the date and time of receipt by the applicable
deadlines.
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\29\ See Antidumping and Countervailing Duty Proceedings:
Electronic Filing Procedures; Administrative Protective Order
Procedures, 76 FR 39263 (July 6, 2011); see also Enforcement and
Compliance; Change of Electronic Filing System Name, 79 FR 69046
(November 20, 2014) for details of Commerce's electronic filing
requirements, effective August 5, 2011. Information on help using
ACCESS can be found at https://access.trade.gov/help.aspx and a
handbook can be found at https://access.trade.gov/help/Handbook%20on%20Electronic%20Filling%20Procedures.pdf.
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Certification Requirements
Any party submitting factual information in an AD or CVD proceeding
must certify to the accuracy and completeness of that information.\30\
Parties must use the certification formats provided in 19 CFR
351.303(g).\31\ Commerce intends to reject factual submissions if the
submitting party does not comply with the applicable revised
certification requirements.
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\30\ See section 782(b) of the Act.
\31\ See also Certification of Factual Information to Import
Administration During Antidumping and Countervailing Duty
Proceedings, 78 FR 42678 (July 17, 2013) (Final Rule). Answers to
frequently asked questions regarding the Final Rule are available at
https://enforcement.trade.gov/tlei/notices/factual_info_final_rule_FAQ_07172013.pdf.
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Administrative Protective Order Access and Letters of Appearance
Commerce will issue new administrative protective orders (APO) for
the continued 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 the procedures
outlined in Commerce's regulations at 19 CFR 351.305. These
applications must be filed electronically using ACCESS at https://access.trade.gov. Those procedures apply to this continued
investigation. Parties wishing to participate in this continued
investigation should ensure that they meet the requirements of these
procedures, e.g., the filing of separate letters of appearance as
discussed at 19 CFR 351.103(d).
This determination is issued and published in accordance with
section 733(f) and 777(i)(1) of the Act.
Dated: May 7, 2019.
Jeffrey I. Kessler,
Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2019-09786 Filed 5-10-19; 8:45 am]
BILLING CODE 3510-DS-P
