[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:

------------------------------------------------------------------------
                                                               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