[Federal Register Volume 84, Number 207 (Friday, October 25, 2019)]
[Notices]
[Pages 57401-57403]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-23341]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-201-820]
Fresh Tomatoes From Mexico: Final Determination of Sales at Less
Than Fair Value
AGENCY: Enforcement and Compliance, International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce (Commerce) determines that fresh
tomatoes from Mexico are being, or are likely to be, sold in the United
States at less than fair value (LTFV). The final estimated weighted-
average dumping margins are listed below in the ``Final Determination''
section of this notice.
DATES: Applicable October 25, 2019.
FOR FURTHER INFORMATION CONTACT: Yang Jin Chun or Hermes Pinilla, AD/
CVD Operations, Office I, Enforcement and Compliance, International
Trade Administration, U.S. Department of Commerce, 1401 Constitution
Avenue NW, Washington, DC 20230; telephone: (202) 482-5760 and (202)
482-3477, respectively.
SUPPLEMENTARY INFORMATION:
Background
On May 7, 2019, Commerce terminated the 2013 Suspension Agreement
\1\ on fresh tomatoes from Mexico and continued the LTFV investigation
of fresh tomatoes from Mexico.\2\ 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 terminated a
suspension agreement and continued an investigation that covers a
period of investigation that dates back more than 23 years, Commerce
determined to request information corresponding to the most recent four
full quarters, i.e., April 1, 2018 through March 31, 2019.\3\ Based on
the unusual procedural posture, we also found it appropriate to
reconsider respondent selection.\4\ On May 24, 2019, we selected
Bioparques de Occidente, S.A. de C.V. (Bioparques), Ceuta Produce, S.A.
de C.V. (Ceuta), and Negocio Agricola San Enrique, S.A. de C.V. (San
Enrique) for individual examination in this continued investigation.\5\
On July 23, 2019, Commerce issued the post-preliminary decision based
on the information requested from, and provided by, Bioparques, Ceuta,
and San Enrique.\6\ Commerce received case and rebuttal briefs on
August 30, 2019, and September 4, 2019, respectively.\7\
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\1\ See Fresh Tomatoes From Mexico: Suspension of Antidumping
Investigation, 78 FR 14967 (March 8, 2013) (2013 Suspension
Agreement).
\2\ See Fresh Tomatoes From Mexico: Termination of Suspension
Agreement, Rescission of Administrative Review, and Continuation of
the Antidumping Duty Investigation, 84 FR 20858 (May 13, 2019)
(Continuation Notice).
\3\ Id., 84 FR at 20860-61.
\4\ Id., 84 FR at 20861.
\5\ See Memorandum, ``Less-Than-Fair-Value Investigation of
Fresh Tomatoes from Mexico: Respondent Selection,'' dated May 24,
2019.
\6\ See Memorandum, ``Post-Preliminary Decision Memorandum in
the Less-Than-Fair-Value Investigation of Fresh Tomatoes from
Mexico,'' dated July 23, 2019 (Post-Preliminary Decision).
\7\ See Florida Tomato Exchange's Case Brief dated August 30,
2019, the Mexican Respondents' Case Brief dated August 30, 2019, Red
Sun Farms' Redacted Case Brief dated September 11, 2019, Florida
Tomato Exchange's Rebuttal Brief dated September 4, 2019, and the
Mexican Respondents' Rebuttal Brief dated September 4, 2019. Red Sun
Farms submitted its original case brief on August 30, 2019, which we
rejected on September 9, 2019, for containing untimely filed new
factual information. See Commerce's Letter to Red Sun Farms dated
September 9, 2019. Red Sun Farms submitted its partially redacted
case brief on September 11, 2019.
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[[Page 57402]]
Continuation of Investigation
On September 19, 2019, Commerce and representatives of the
signatory producers/exporters accounting for substantially all imports
of fresh tomatoes from Mexico signed an agreement to suspend this
investigation (the 2019 Agreement).\8\ On October 11, 2019, the Florida
Tomato Exchange, a member of the U.S. petitioning industry, timely
requested that Commerce continue this investigation.\9\ On October 15,
2019, Red Sun Farms also timely requested that Commerce continue this
investigation.\10\ Commerce has continued and completed this
investigation in accordance with section 734(g) of the Tariff Act of
1930, as amended (the Act).
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\8\ See Fresh Tomatoes From Mexico: Suspension of Antidumping
Duty Investigation, 84 FR 49987 (September 24, 2019) (2019
Suspension Agreement).
\9\ See Florida Tomato Exchange's Letter, ``Fresh Tomatoes from
Mexico: Request to Continue Suspended Less Than Fair Value
Investigation,'' dated October 11, 2019. Florida Tomato Exchange is
a member of the petitioning group that filed the petition in this
investigation. See Initiation of Antidumping Duty Investigation:
Fresh Tomatoes From Mexico, 61 FR 18377 (April 25, 1996).
\10\ See Red Sun Farms' Letter, ``Request to Continue Suspended
Antidumping Duty Investigation,'' dated October 15, 2019.
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Scope of the Investigation
For a complete description of the scope of this investigation, see
the ``Scope of the Investigation'' in Appendix I of this notice.
Scope Comments
In the post-preliminary decision, we addressed comments concerning
the scope of this investigation.\11\ No party filed comments in its
case brief concerning the scope of the investigation. Therefore, we
have made no changes to the scope of the investigation in the final
determination.
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\11\ See Post-Preliminary Decision at 4-5.
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Analysis of Comments Received
All issues raised in the case and rebuttal briefs by parties in
this investigation are addressed in the Issues and Decision Memorandum,
which is hereby adopted by this notice.\12\ A list of the issues raised
is attached to this notice as Appendix II. The Issues and Decision
Memorandum is a public document and is on file 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 it is available to all
parties in the Central Records Unit, room B-8024 of the main Commerce
building. In addition, a complete version of the Issues and Decision
Memorandum can be accessed directly at http://enforcement.trade.gov/frn/index.html. The signed Issues and Decision Memorandum and the
electronic version are identical in content.
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\12\ See Memorandum, ``Fresh Tomatoes from Mexico: Issues and
Decision Memorandum for the Final Determination of Sales at the Less
Than Fair Value,'' dated concurrently with this notice (Issues and
Decision Memorandum).
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Verification
As provided in section 782(i) of the Act, in August 2019, Commerce
verified the sales and cost data reported by Bioparques, Ceuta, and San
Enrique. We used standard verification procedures, including an
examination of relevant accounting and production records, and original
source documents provided by the respondents.
Changes Since the Post-Preliminary Analysis
Based on the respondents' supplemental responses and revised sales
and cost databases, our findings at verification, and our analysis of
the comments received, we made certain changes to the margin
calculations in the post-preliminary decision. For a discussion of
these changes, see the Issues and Decision Memorandum. We have also
revised the all-others rate.
All-Others Rate
Section 735(c)(5)(A) of the Act provides that Commerce estimate the
weighted-average dumping margin for all other producers or exporters
not subject to individual examination equal to the weighted average of
the estimated weighted-average dumping margins of the individually
examined respondents, excluding any rates that are zero, de minimis, or
based entirely on facts available pursuant to section 776 of the Act.
For purposes of this final determination, we are assigning 20.91
percent as the all-others rate, which is based on the weighted average
of the estimated dumping margins calculated for the three individually
examined respondents whose margins are above de minimis in the
continued investigation.\13\
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\13\ See Memorandum, ``Fresh Tomatoes from Mexico: Final All-
Others Rate,'' dated concurrently with this notice.
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Final Determination
Commerce determines that the final weighted-average dumping margins
are as follows:
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Weighted-
average
Producer/exporter dumping
margin
(percent)
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Bioparques de Occidente, S.A. de C.V./Agricola La Primavera, 30.48
S.A. de C.V.\14\...........................................
Ceuta Produce, S.A. de C.V./Rancho La Memoria, S. de R.L. de 3.91
C.V.\15\...................................................
Negocio Agricola San Enrique, S.A. de C.V................... 17.02
All Others.................................................. 20.91
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Disclosure
We intend to disclose the calculations performed to interested
parties within five days of the public announcement of this final
determination consistent with 19 CFR 353.20(e) (1996).
Suspension of Liquidation
As noted above, on September 19, 2019, Commerce and representatives
of the signatory producers/exporters accounting for substantially all
imports of fresh tomatoes from Mexico signed the 2019 Agreement.
Consistent with section 734(h)(3) of the Act, the suspension of
liquidation ordered following the May 7, 2019 continuation of the
investigation remained in effect.\16\ No interested party requested a
review of the suspension of the investigation by the U.S. International
Trade Commission (ITC) under section 734(h) of the Act. Therefore, in
accordance with section 734(h)(3) of the Act, and because the 2019
Agreement remains in force, Commerce is instructing U.S. Customs and
Border Protection to terminate the suspension of liquidation of all
entries of fresh tomatoes from Mexico, entered, or withdrawn from
warehouse, for consumption on or after May 7, 2019, and to liquidate
the entries without regard to antidumping duties (i.e., to refund any
cash deposits and release any bonds for such entries).
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\14\ In this investigation we have determined that Bioparques de
Occidente, S.A. de C.V. and Agricola La Primavera, S.A. de C.V. are
affiliated and should be treated as a single entity. See Issues and
Decision Memorandum at 4-6.
\15\ In this investigation we have determined that Ceuta
Produce, S.A. de C.V. and Rancho La Memoria, S. de R.L. de C.V. are
affiliated and should be treated as a single entity. See Issues and
Decision Memorandum at 4-6.
\16\ See 2019 Suspension Agreement, 84 FR at 49989 (``The
suspension of liquidation ordered following the May 7, 2019
continuation of the investigation shall continue to be in effect,
subject to section 734(h)(3) of the Act.'').
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International Trade Commission Notification
In accordance with section 735(d) of the Act, we will notify the
ITC of the final affirmative determination of sales
[[Page 57403]]
at LTFV. Because the final determination in this investigation is
affirmative, in accordance with section 735(b)(2) of the Act, the ITC
will make its final determination as to whether the domestic industry
in the United States is materially injured, or threatened with material
injury, by reason of imports of fresh tomatoes from Mexico no later
than 45 days after our final determination. If the ITC determines that
material injury or threat of material injury does not exist, the 2019
Agreement will have no force or effect, and the investigation will be
terminated.\17\ If the ITC determines that material injury or threat of
material injury does exist, the 2019 Agreement shall remain in force.
Commerce will not issue an antidumping duty order so long as: (1) The
2019 Agreement remains in force; (2) the 2019 Agreement continues to
meet the requirements of sections 734(c) and (d) of the Act; and (3)
the parties to the 2019 Agreement carry out their obligations under the
2019 Agreement in accordance with its terms.\18\
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\17\ See section 734(f)(3)(A) of the Act.
\18\ See section 734(f)(3)(B) of the Act.
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Notification Regarding Administrative Protective Orders
This notice serves as a reminder to parties subject to an
Administrative Protective Order (APO) of their responsibility
concerning the disposition of proprietary information disclosed under
APO in accordance with 19 CFR 351.305(a)(3).\19\ Timely 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 the terms of an APO is a violation subject to sanction.
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\19\ See Continuation Notice, 84 FR at 20861 (stating that the
procedures in 19 CFR 351.305 apply to this continued investigation).
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This determination and this notice are issued and published
pursuant to sections 735(d) and 777(i)(1) of the Act.
Dated: October 21, 2019.
Jeffrey I. Kessler,
Assistant Secretary for Enforcement and Compliance.
Appendix I
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 disposition.
Appendix II
List of Topics Discussed in the Issues and Decision Memorandum
I. Summary
II. Background
III. Scope of the Investigation
IV. Scope Comments
V. Affiliation and Collapsing
VI. Changes Since the Post-Preliminary Decision
VII. Discussion of the Issues
A. Procedural Issues
Comment 1: Basis for the Continued Investigation
Comment 2: Respondent Selection
Comment 3: Due Process
B. General Calculation Issues
Comment 4: Time Period in the Differential Pricing Analysis
Comment 5: Comparison of U.S. Prices to Normal Values on a
Monthly Basis
Comment 6: Product Matching by Tomato Type
C. Bioparques
Comment 7: Bioparques' High-Priced Home Market Sales
Comment 8: Offsets to La Primavera's General and Administrative
Expenses
Comment 9: Packing Labor and Overhead Costs
Comment 10: Interest Income Offsets
Comment 11: Adjustment to Roma Production Quantities
D. Ceuta
Comment 12: Ceuta's Home Market and U.S. Sales Prices
Comment 13: Ceuta's Packing Cost Methodology
Comment 14: Ceuta's Missing U.S. Packing Costs
Comment 15: Ceuta's Home Market Discounts
E. San Enrique
Comment 16: San Enrique's Affiliation
Comment 17: San Enrique's U.S. Commission
Comment 18: San Enrique's Packing Costs
F. All-Others Rate and Cash Deposit Rate
Comment 19: All-Others Rate
Comment 20: Red Sun Farms' Cash Deposit Rate
VIII. Recommendation
[FR Doc. 2019-23341 Filed 10-24-19; 8:45 am]
BILLING CODE 3510-DS-P