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Notice

Fresh Tomatoes From Mexico: Suspension of Antidumping Duty Investigation

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Start Preamble Start Printed Page 49987

AGENCY:

Enforcement and Compliance, International Trade Administration, Department of Commerce.

DATES:

Applicable September 19, 2019.

SUMMARY:

The Department of Commerce (Commerce) has suspended the antidumping duty (AD) investigation on fresh tomatoes from Mexico. The basis for this action is an agreement between Commerce and signatory producers/exporters accounting for substantially all imports of fresh tomatoes from Mexico that eliminates completely the injurious effects of exports of the subject merchandise to the United States.

Start Further Info

FOR FURTHER INFORMATION CONTACT:

Sally C. Gannon or David Cordell at (202) 482-0162 or (202) 482-0408, respectively; Bilateral Agreements Unit, Office of Policy, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230.

End Further Info End Preamble Start Supplemental Information

SUPPLEMENTARY INFORMATION:

Background

On April 18, 1996, Commerce initiated an antidumping duty investigation under section 732 of the Tariff Act of 1930, as amended (the Act), 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 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]

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 Start Printed Page 49988new suspension agreement (2013 Agreement).[12]

On January 9, 2018, Commerce issued a letter that formally opened consultations with CAADES et al.,[13] the Mexican growers' associations, to negotiate possible revisions to the 2013 Agreement.[14] Since that time, Commerce has continued to negotiate with representatives of the Mexican producers/exporters and, in parallel, has continually consulted with representatives the Florida Tomato Exchange (FTE), a member of the U.S. petitioning industry, as well as other interested parties.

On February 1, 2018, Commerce initiated a five-year sunset review of the suspended investigation.[15] On March 29, 2018, the FTE filed a request that Commerce conduct an administrative review of producers/exporters of fresh tomatoes from Mexico covered by the 2013 Agreement. On May 2, 2018, Commerce initiated the administrative review of the 2013 Agreement.[16] On August 27, 2018, Commerce published in the Federal Register the preliminary results of the five-year sunset review of the suspended investigation.[17]

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.[18] Section VI.B of the 2013 Agreement stated 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.[19] On November 26, 2018 and November 28, 2018, respectively, CAADES et al. submitted responses to FTE's previous request for Commerce to terminate the 2013 Agreement.[20 21] 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 CAADES et al.[22] 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.[23]

On February 6, 2019, in accordance with Section VI.B of the 2013 Agreement, Commerce notified Mexican signatories that Commerce intended to withdraw from the 2013 Agreement, rescind the sunset and administrative reviews, and resume the AD duty investigation.[24] Since the notification, as noted above, Commerce has held consultations with representatives of CAADES et al. and the domestic industry to discuss a possible suspension agreement.

On May 7, 2019, because a new suspension agreement had not been signed, Commerce withdrew from and terminated the 2013 Agreement, rescinded the administrative review of that agreement, and continued the antidumping duty investigation.[25] 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.[26] Based on the unusual procedural posture, we also found it appropriate to reconsider respondent selection.[27] 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.[28] On July 23, 2019, Commerce issued a post-preliminary decision based on the information requested from, and provided by, Bioparques, Ceuta, and San Enrique.[29]

On August 20, 2019, Commerce and a representative of CAADES et al. initialed a draft agreement to suspend the antidumping investigation on fresh tomatoes from Mexico. Consistent with section 734(e) of the Act, Commerce notified the FTE and the other parties, released the initialed draft agreement to the interested parties, and invited interested parties to provide written comments on the draft suspension agreement by no later than the close of business on September 9, 2019.[30] Consistent with 734(e)(1) of the Act, Commerce consulted with the FTE concerning its intention to suspend the antidumping investigation on fresh tomatoes from Mexico. Commerce also notified the ITC of the proposed agreement,[31] consistent with 734(e)(1) of the Act, and released draft statutory memoranda explaining how the agreement will be carried out and enforced, and how the agreement will meet the applicable statutory requirements, consistent with section 734(e)(2) of the Act.[32] Commerce received comments from numerous Start Printed Page 49989parties by the September 9, 2019 deadline.[33]

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 Suspending the Antidumping Duty Investigation on Fresh Tomatoes from Mexico (2019 Agreement), attached hereto.

Scope of Agreement

See Section I, Product Coverage, of the 2019 Agreement.

Suspension of Investigation

Commerce consulted with the Mexican fresh tomato producers/exporters and the FTE and has considered the comments submitted by interested parties with respect to the proposal to suspend the antidumping investigation. In accordance with section 734(c) of the Act, we have determined that extraordinary circumstances are present in this case, as defined by section 734(c)(2)(A) of the Act.

The 2019 Agreement provides, in accordance with 734(c)(1) of the Act, that the subject merchandise will be sold at or above the established reference price and, for each entry of each exporter, the amount by which the estimated normal value exceeds the export price (or the constructed export price) will not exceed 15 percent of the weighted-average amount by which the estimated normal value exceeded the export price (or the constructed export price) for all less-than-fair-value entries of the producer/exporter examined during the course of the investigation. We have determined that the 2019 Agreement will eliminate completely the injurious effect of exports to the United States of the subject merchandise and prevent the suppression or undercutting of price levels of domestic fresh tomatoes by imports of that merchandise from Mexico, as required by section 734(c)(1) of the Act.

We have also determined that the 2019 Agreement is in the public interest and can be monitored effectively, as required under section 734(d) of the Act.

For the reasons outlined above, we find that the 2019 Agreement meets the criteria of section 734(c) and (d) of the Act.

The 2019 Agreement, signed September 19, 2019, is attached to this notice.

International Trade Commission

In accordance with section 734(f) of the Act, Commerce has notified the ITC of the 2019 Agreement.

Suspension of Liquidation

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.[34] Section 734(f)(2)(B) of the Act provides that Commerce may adjust the security required to reflect the effect of the 2019 Agreement. Commerce has found that the 2019 Agreement eliminates completely the injurious effects of imports and, thus, Commerce is adjusting the security required from signatory producers/exporters to zero. The security rates in effect for imports from any non-signatory producers/exporters, which are based on the preliminary dumping margins, remain as published in the Continuation Notice. If there is no request for review of suspension under section 734(h) of the Act, or if the ITC conducts a review and finds that the injurious effect of imports of the subject merchandise is eliminated completely by the 2019 Agreement, Commerce will terminate the suspension of liquidation of all entries of fresh tomatoes from Mexico, and refund any cash deposits collected on entries of fresh tomatoes from Mexico consistent with section 734(h)(3) of the Act.

Notwithstanding the 2019 Agreement, Commerce will continue the investigation if it receives such a request within 20 days after the date of publication of this notice in the Federal Register, in accordance with section 734(g) of the Act.

Administrative Protective Order Access

The Administrative Protective Order (APO) Commerce granted in the investigation segment of this proceeding remains in place. While the investigation is suspended, parties subject to the APO may retain, but may not use, information received under that APO. All parties wishing access to business proprietary information submitted during the administration of the 2019 Agreement must submit new APO applications in accordance with Commerce's regulations currently in effect.[35] An APO for the administration of the 2019 Agreement will be placed on the record within five days of the date of publication of this notice in the Federal Register.

We are issuing and publishing this notice in accordance with section 734(f)(1)(A) of the Act.

Start Signature

Dated: September 19, 2019.

Jeffrey I. Kessler

Assistant Secretary for Enforcement and Compliance.

End Signature

Attachment

Agreement Suspending the Antidumping Duty Investigation on Fresh Tomatoes From Mexico

Pursuant to section 734(c) of the Tariff Act of 1930, as amended (the Act) (19 U.S.C. 1673c(c)), and 19 CFR 351.208 (2018),[36] the U.S. Department of Commerce (Commerce) and the Signatory producers/exporters of fresh tomatoes from Mexico (individually, Signatory; collectively, Signatories) enter into this Agreement Suspending the Antidumping Duty Investigation on Fresh Tomatoes from Mexico (Agreement).

I. Product Coverage

The merchandise subject to this Agreement 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 Agreement, 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. In Appendix F of this Agreement, Commerce has outlined the procedure that Signatories must follow for selling subject merchandise for processing. 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 this Agreement.

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 Agreement.

Tomatoes imported from Mexico covered by this Agreement are classified under the following subheading of the Harmonized Tariff Schedules of the United States (HTSUS), according to the season of importation: 0702. Although this HTSUS number is provided for convenience and customs purposes, the written description of the scope of this Agreement is dispositive.Start Printed Page 49990

II. Definitions

For purposes of the Agreement, the following definitions apply:

A. “Anniversary Month” means the month in which the Agreement becomes effective.

B. “Buyer” means the first unaffiliated customer in the United States that takes title of the subject merchandise.

C. “Effective Date” means the date on which Commerce and the Signatories sign the Agreement.

D. “Fresh Tomatoes” means the product described under section I, “Product Coverage,” of the Agreement.

E. “Grower Association” means a Mexican grower association whose members produce and/or export Fresh Tomatoes from Mexico and are also Signatories to this Agreement, e.g., Confederación de Asociaciones Agrícolas del Estado de Sinaloa, A.C.; Consejo Agrícola de Baja California, A.C.; Asociación Mexicana de Horticultura Protegida, A.C.; Asociación de Productores de Hortalizas del Yaqui y Mayo, and Sistema Producto Tomate.

F. “Interested Party” means any person or entity that meets the definitions provided in section 771(9) of the Act.

G. “Mexico” means the customs territory of the United Mexican States and foreign trade zones within the territory of Mexico.

H. “Organic Tomatoes” means Fresh Tomatoes produced by a production system that has been certified “organic” by the U.S. Department of Agriculture, is labeled as “organic,” and may include Round, Roma, Specialty, Stem On, and Tomatoes on the Vine Fresh Tomatoes (see, respectively, sections II.K, II.L, II.N, II.Q, and II.S).

I. “PACA” means the Perishable Agricultural Commodities Act of 1930, as amended (7 U.S.C. 499a et seq.).

J. “Reference Price” means the minimum price at which merchandise subject to this Agreement can be sold in the United States.

K. “Round” means round Fresh Tomatoes, whether mature green or vine ripe, not including any Stem On tomatoes, regardless of growing method or type of packing.

L. “Roma” means roma or plum Fresh Tomatoes, whether mature green or vine ripe, not including any Stem On tomatoes, regardless of growing method or type of packing.

M. “Selling Agent” means any entity (e.g., importer, agent, distributor, or entity meeting the definition of “commission merchant,” “dealer,” or “broker,” as those terms are defined in section 1(b) of the PACA (7 U.S.C. 499a(b))) that facilitates the sale to the Buyer.

N. “Specialty” means grape, cherry, heirloom, cocktail Fresh Tomatoes, or any other tomato varietal, other than Round and Roma tomatoes, with or without stem.

O. “Specialty—Loose” means Specialty Fresh Tomatoes not in packaging.

P. “Specialty—Packed” means Specialty Fresh Tomatoes in packaging.

Q. “Stem On” means any type of Fresh Tomato, except Specialty and Tomatoes on the Vine, with some or all of the stem attached.

R. “Substantially all” of the subject merchandise means not less than 85 percent by value or volume of the imports of subject merchandise.

S. “Tomatoes on the Vine” means any type of Fresh Tomato, except Specialty, in which there are two or more tomatoes, typically in a cluster, with the vine attached; such tomatoes include single tomatoes of the same type that are found in the same package with the tomato clusters herein defined.

T. “United States” means the customs territory of the United States of America (the 50 States, the District of Columbia, and Puerto Rico) and foreign trade zones located within the territory of the United States.

U. “USDA” means the United States Department of Agriculture.

V. “Violation” means noncompliance with the terms of the Agreement, whether through an act or omission, except for noncompliance that is inconsequential or inadvertent, and does not materially frustrate the purposes of the Agreement. See section VIII for examples of activities that may be deemed by Commerce to be Violations.

W. “Working Group” means the joint working group established on August 23, 2013 between the Mexican tomato industry and the Government of Mexico for purposes of regularly monitoring and reconciling Fresh Tomatoes from Mexico export data and identifying and addressing any inconsistencies or irregularities.

Any term or phrase not defined by this section shall be defined using either a definition provided in the Act for that term or phrase, or the plain meaning of that term, as appropriate.

III. Suspension of Investigation

As of the Effective Date, in accordance with section 734(c) of the Act and 19 CFR 351.208, Commerce will suspend its antidumping duty investigation on Fresh Tomatoes from Mexico initiated on April 18, 1996.[37]

IV. U.S. Import Coverage

In accordance with section 734(c)(1) of the Act, the Signatories are the producers and/or exporters in Mexico which account for substantially all of the subject merchandise imported into the United States. Commerce may at any time during the period of the Agreement require additional producers/exporters in Mexico to sign the Agreement in order to ensure that not less than substantially all imports into the United States are subject to the Agreement.

V. Statutory Conditions for the Agreement

In accordance with section 734(c) of the Act, Commerce has determined that extraordinary circumstances are present in this investigation because the suspension of the investigation will be more beneficial to the domestic industry than the continuation of the investigation and that the investigation is complex.

In accordance with section 734(d) of the Act, Commerce determines that the suspension of the investigation is in the public interest and that effective monitoring of the Agreement by the United States is practicable. Section 734(a)(2)(B) of the Act provides that the public interest includes the availability of supplies of the merchandise and the relative impact on the competitiveness of the domestic industry producing the like merchandise, including any such impact on employment and investment in that industry. Accordingly, if a domestic producer requests an administrative review of the status of, and compliance with, the Agreement, Commerce will take these factors into account in conducting that review. If Commerce finds that the Agreement is not working as intended in this regard, Commerce will explore all appropriate measures, including renegotiation of the terms of the Agreement to resolve the problem or measures under section 751(d)(1) of the Act.

VI. Price Undertaking

In order to satisfy the requirements of section 734(c)(1)(A) of the Act, each Signatory individually agrees that, to prevent price suppression or undercutting, it will not sell in the United States, on and after the Effective Date of the Agreement, merchandise subject to the Agreement at prices that are less than the Reference Prices established in Appendix A.

In order to satisfy the requirements of section 734(c)(1)(B) of the Act, each Signatory individually agrees that for each entry the amount by which the estimated normal value exceeds the export price (or the constructed export price) will not exceed 15 percent of the weighted average amount by which the estimated normal value exceeded the export price (or the constructed export price) for all less-than-fair-value entries of the producer/exporter examined during the course of the investigation, in accordance with the Act and Commerce's regulations and procedures, including but not limited to the calculation methodologies described in Appendix B.

VII. Monitoring of the Agreement

A. Import Monitoring

1. The Signatories will maintain the Working Group, which will regularly monitor and reconcile Mexican export data and identify and address any inconsistencies or irregularities. The Working Group will refer any alleged Violations (either those discovered during its monitoring exercises or those reported by Commerce) to the Mexican Government for appropriate action. For further information, please see information provided at: https://enforcement.trade.gov/​tomato.

2. Commerce will monitor entries of Fresh Tomatoes from Mexico to ensure compliance with section VI of this Agreement.

3. Commerce will review, and place on the official record, publicly available data and other official import data, including, as appropriate, records maintained by U.S. Customs and Border Protection (CBP), to determine whether there have been imports that are inconsistent with the provisions of this Agreement.

4. Commerce will review, as appropriate, data it receives from the Working Group and through any data exchange program between U.S. and Mexican government agencies, to determine whether there have been imports that are inconsistent with the provisions of this Agreement.Start Printed Page 49991

5. An interagency task force between Commerce, USDA, and CBP will review data and information, as appropriate, and coordinate enforcement action, as necessary.

B. Compliance Monitoring

1. Commerce may require, and each Signatory agrees to provide, confirmation, through documentation provided to Commerce, that the price received on any sale subject to this Agreement was not less than the established Reference Price. Commerce may require that such documentation be provided and be subject to verification.

2. Commerce may require, and each Signatory agrees to report in the prescribed format and using the prescribed method of data compilation, each sale of the merchandise subject to this Agreement, made either directly or indirectly to Buyers in the United States, including each adjustment applicable to each sale, as specified by Commerce. Each Signatory agrees to permit review and on-site inspection of all information deemed necessary by Commerce to verify the reported information.

3. Commerce may initiate administrative reviews under section 751(a) of the Act in the month immediately following the Anniversary Month, upon request or upon its own initiative, to ensure that exports of Fresh Tomatoes from Mexico satisfy the requirements of section 734(c)(1)(A) and (B) of the Act. Commerce may perform verifications pursuant to administrative reviews conducted under section 751 of the Act.

4. At any time it deems appropriate, and without prior notice, Commerce shall conduct verifications of parties handling Signatory merchandise (e.g., Signatory producers and/or exporters and Selling Agents) to determine whether they are selling Signatory merchandise in accordance with the terms of this Agreement. Commerce shall also conduct verifications at the Grower Association level at locations and times it deems appropriate to ensure compliance with the terms of the Agreement. Commerce may conduct periodic verifications, in Mexico, at border-crossing locations, or through questionnaires issued by Commerce, to spot check compliance.

5. The Working Group shall provide to Commerce a quarterly report on all issues submitted by Commerce to the Working Group for investigation under the Agreement. In addition, the Working Group shall provide to Commerce an annual report on all activities undertaken, to include information on any allegation of a Violation of the Agreement, information uncovered during investigations, and the results of/resolution to the issue. Commerce shall place such reports on the official record of the Agreement.

6. Commerce and the Signatory producers/exporters shall hold periodic meetings, as necessary, e.g., more frequently during the peak season, to discuss monitoring and enforcement matters.

7. Commerce shall sample up to 40 Signatories on a quarterly basis, within 30 days of the end of each quarter, from which to request detailed information related to each sale of any type of subject tomato. With good cause, to include any issues identified pursuant to inspection under section VII.C, Commerce may sample more than 40 Signatories under this paragraph. Commerce shall request information including: Date on which it entered into a contract for the sale of Signatory tomatoes with each Selling Agent during that quarter; name of the Selling Agent; quantity of tomatoes to be supplied under that contract; and price of the tomatoes sold under each contract. Further, the sampled Signatories shall submit to Commerce the following information: Export license number, quantity exported under that license; price of such tomatoes; importer of record for each shipment, Selling Agent(s), if any, involved in the sale; the Buyer (if known); USDA inspection reports for the required inspections under section VII.C, if applicable; and records to support any return or destruction of tomato lots [38] pursuant to those inspections. All information must be submitted to Commerce in electronic format, including Microsoft Excel reporting of all data contained therein. Signatories selected for sampling pursuant to this paragraph shall be given at least 30 days to submit the information requested by Commerce.

8. Through a contractual arrangement, Signatories shall require their Selling Agents to respond to Commerce's requests for information concerning sales of any type of Signatory tomatoes. Commerce shall sample up to 40 Selling Agents on a quarterly basis, within 30 days of the end of each quarter, from which to request information. With good cause, to include any issues identified pursuant to inspections under section VII.C, Commerce can sample more than 40 Selling Agents under this paragraph. Commerce shall request information including: The date during the quarter on which it entered into a contract for sale of Signatory tomatoes, the name of that Signatory, the quantity of tomatoes to be supplied under that contract and the price, and the pre-season letter sent by the Selling Agent to the Buyer. The sampled Selling Agent shall submit to Commerce each quarter the quantity of Signatory tomatoes it imports from each Signatory and the quantity of Signatory tomatoes it sells on behalf of each Signatory, and, as applicable, USDA inspection reports for the required inspections under section VII.C, if applicable; and records to support any return or destruction of tomato lots pursuant to those inspections. Each sampled Selling Agent shall also submit to Commerce a listing of each sale of Signatory tomatoes it makes to a Buyer during the quarter, including the name of the Buyer, quantity sold by category of tomato, and the price. All information must be submitted to Commerce in electronic format, including Microsoft Excel reporting of all data contained therein. Selling Agents selected for sampling pursuant to this paragraph shall be given at least 30 days to submit the information requested by Commerce.

C. Inspection of Subject Merchandise

1. Beginning approximately (and no less than) six months from the Effective Date of the Agreement, all loads of subject merchandise, as specified in paragraph 2 of this section, shall be subject to a USDA inspection for quality and condition defects near the border after entering the United States.[39] Commerce will consult with USDA on the development and implementation of the inspection program. The trade community will have at least 60 days' advance notice prior to implementation of the inspection program. For avoidance of doubt, all loads of Fresh Tomatoes from Mexico that are inspected pursuant to a USDA marketing order are not required to also be inspected pursuant to the inspection program under this section VII.C.

2. USDA shall inspect the following loads of Fresh Tomatoes from Mexico: All Round and Roma tomatoes (including Stem On) and grape tomatoes in bulk. The following Fresh Tomatoes are excluded from the inspection requirement: Tomatoes on the Vine, Specialty tomatoes, and grape tomatoes in retail packages of 2 pounds or less. When the load is available for inspection, the importer [40] must request the USDA inspection and pay the associated USDA fees. Inspections will be performed in a timely manner. A USDA inspector will normally arrive and complete the inspection within 48 hours of receiving an importer's official request for inspection. At locations that normally have USDA inspectors in the area, a USDA inspector will normally arrive and complete the inspection within 24 hours of the official request for inspection by the importer.

3. USDA will perform inspections (an unrestricted certification) in accordance with its normal practice to determine quality, condition, and grade pursuant to the appropriate USDA standard covering fresh tomatoes and greenhouse tomatoes and using shipping point tolerances. All tomatoes must grade to at least U.S. No. 2. The current, applicable USDA standards are as follows:

a. U.S. No. 1, U.S. Combination, or U.S. No. 2 of the U.S. Standards for Grades of Fresh Tomatoes (for shipping point tolerances see 51.1861 of the aforementioned U.S. Standards).

b. U.S. No. 1 or U.S. No. 2 of the U.S. Standards for Grades of Greenhouse Tomatoes (for tolerances see 51.3348 of the aforementioned U.S. Standards).

4. After the USDA inspection, the importer will receive an inspection certificate, which must be maintained by the importer and is subject to submission to, and verification by, Commerce, consistent with the importer's contractual obligation with the Signatory. If a lot of Signatory tomatoes has more defects than the tolerances established in the USDA standards, then the importer may opt either to recondition and re-inspect the lot, or return it to Mexico. In the event of reconditioning and re-inspection, any culls Start Printed Page 49992must be destroyed under USDA supervision. Proof of reconditioning and re-inspection must be maintained by the importer and is subject to submission to, and verification by, Commerce, consistent with the importer's contractual obligation with the Signatory. Alternatively, in the event of return to Mexico, the entire lot must be returned to Mexico or destroyed under USDA oversight, with a USDA certificate provided to the importer as proof of destruction. The Signatory will be responsible for paying all expenses related to the return of the entire lot to Mexico or its destruction. Proof of such return or destruction must be maintained by the importer and is subject to submission to, and verification by, Commerce, consistent with the importer's contractual obligation with the Signatory.

5. Upon implementation of the inspection program, each Signatory must ensure, through a contractual arrangement with the appropriate party, that the importer for all imports of Fresh Tomatoes from Mexico from the Signatory requests the USDA inspection, as indicated above in section VII.C.2, and maintains the documentation specified in section VII.C.4. Similarly, upon implementation of the inspection program, Signatories must ensure, through a contractual arrangement with the appropriate party, that all lots of tomatoes that do not pass the USDA inspection are either reconditioned and re-inspected, or returned to Mexico, as indicated above. Signatories must maintain proof of these contractual arrangements, provide such records to Commerce upon request, and make them available for verification by Commerce at any time.

6. Signatories and Selling Agents, as applicable, must maintain a copy of the Mexican export license, USDA inspection reports, and entry documents associated with each entry of Signatory tomatoes into the United States, as well as records to support any return or destruction of tomato lots under section VII.C.4. Signatories and Selling Agents, as applicable, must provide these records to Commerce upon request and make them available for verification by Commerce at any time.

D. Shipping and Other Arrangements

1. All Reference Prices will be expressed in U.S. Dollars ($) per pound (lb.) in accordance with Appendix A. All Reference Prices are FOB U.S. shipping point, i.e., to the U.S. side of the U.S.-Mexico border. The Reference Price includes all palletizing and cooling charges incurred prior to shipment from the Mexican shipping point, i.e., from the Mexican side of the U.S.-Mexico border. The delivered sales price to a Buyer for all Fresh Tomatoes from Mexico exported directly, or indirectly through a third country, to the United States shall include all movement and handling expenses beyond the point of entry into the United States (e.g., McAllen, Nogales, or Otay Mesa) and in excess of the Reference Price, i.e., the FOB U.S. shipping point price.

2. The parties to this Agreement acknowledge that, in accordance with Mexican regulations, Mexican tomato producers and non-producer exporters exporting to the United States will become Signatories to the Agreement. Signatories will fully comply with all requirements of Mexican regulations concerning identification, tracking, verification and inspection by the relevant Mexican authorities including the Ministry of Economy (SECON), the Ministry of Agriculture (SAGARPA), SAGARPA's National Food Health, Safety and Quality Service (SENASICA) and Customs. Signatory producers will be required to formally assign volumes, through SECON, sold in Mexico to another party as a condition for that party to obtain an export notice (i.e., an aviso automático). In accordance with Mexican regulations, non-compliance will result in the revocation of export privileges. In addition, exporting Fresh Tomatoes to the United States under a Signatory number different than one's own Signatory number may result in revocation of a Signatory's export license in Mexico. For further information, please see information provided at: https://enforcement.trade.gov/​tomato.

3. Signatories agree not to take any action that would circumvent or otherwise evade, or defeat the purpose of, this Agreement. Signatories agree to undertake any measures that will help to prevent circumvention. For example, each Signatory will take the following actions:

a. It is the responsibility of each Signatory to ensure that each sale of its merchandise is made consistent with the requirements of this Agreement and all its Appendices. To that end, each Signatory shall enter into a contract with the Selling Agent(s), if the sale is made indirectly to the Buyer, or with the Buyer, if the sale is made directly to the Buyer, that incorporates the terms of this Agreement. This contractual arrangement must establish that the Selling Agent maintain documentation demonstrating that sales of subject merchandise are made consistent with the requirements of this Agreement. Further, if the Signatory's sale to the Buyer is made through a Selling Agent, the Selling Agent shall incorporate the terms of this Agreement into its contract with the Buyer. It is the responsibility of each Signatory to confirm and ensure any such Selling Agent(s) and Buyer(s) hold a valid and effective license issued pursuant to the PACA, to the extent required by the PACA.[41] All contractual arrangements will specify that parties in the distribution chain from the Signatory to the Buyer will maintain documentation as required by the PACA and as consistent with the requirements of the Agreement.

b. Each Signatory will label its boxes of subject merchandise that are exported to the United States with its name, Signatory identification number, and a statement that “These Tomatoes Were Grown/Exported By a Signatory of the 2019 Suspension Agreement.” [42] Alternatively, if the Signatory that exports the subject merchandise is different from the entity that produced the subject merchandise, it will label the boxes with its name and its Signatory identification number. Each Signatory also will label its boxes with the type of tomato being shipped in the box, i.e., Round, Roma, Specialty, Stem On, or Tomatoes on the Vine.

c. Each Signatory will label its boxes of fresh tomatoes sold in Mexico with its name, Signatory number, and the statement “Prohibida Su Exportacion a los EUA/Not for Export to the United States.”

4. Not later than 30 days after the end of each quarter,[43] each Signatory must submit a certification to Commerce. Through a contractual arrangement, Signatories shall require their Selling Agents to provide information necessary for inclusion in the Signatories' quarterly certification. Each Signatory agrees to permit full verification of its certification as Commerce deems necessary. Signatories can obtain a copy of the suggested forms for submitting the quarterly certification information from Commerce's website at: https://enforcement.trade.gov/​tomato. Quarterly certifications must be submitted to Commerce in electronic format, including Microsoft Excel reporting of all data contained therein. The certification must include:

a. A written statement to Commerce certifying that the invoice price for all sales of its Fresh Tomatoes made during the most recently completed quarter (after rebates, backbilling, discounts for quality, and other claims) were at or above the Reference Prices in effect, were not part of or related to any act or practice which would have the effect of hiding the real price of the Fresh Tomatoes being sold (e.g., a bundling arrangement, on-site processing arrangement, commingling tomato products, discounts/free goods/financing package, end-of-year rebates, free freight, and/or a swap or other exchange), and were otherwise consistent with the terms of the Agreement.

b. The total quantity and value of tomatoes by tomato type sold during the most recently completed quarter (whether directly or via a Selling Agent), and the total quality and condition defect sales adjustments granted, as applicable, pursuant to Appendix D. For any sales adjustments, the Signatory must report the number of lots on which claims for quality and condition defects were granted, the total volume of tomatoes destroyed, the total value of claims granted, and the total value of payments made to the Buyer by the Signatory and/or Selling Agent.

c. All USDA-issued certifications showing destruction of any defective tomatoes pursuant to Appendix D.

d. Documentation of any return of rejected lots to Mexico, pursuant to Appendix D, and a written statement that there were no additional rejections beyond those being provided.

e. The volume of a Signatory producer's registered production that is assigned to any Start Printed Page 49993other party for export to the United States and the name of that party.

f. The volume of each Signatory exporter's (e.g., a non-producer exporter) registered production assigned to it for export to the United States by a Signatory producer(s) and the name of the Signatory producer(s).

g. A statement acknowledging the Signatory's understanding that intentional Violations of the Agreement are subject to additional civil penalties per section VIII.B of the Agreement.

h. Alternatively, a written statement to Commerce, if the Signatory did not export Fresh Tomatoes to the United States, certifying that it made no sales to the United States during the most recently completed quarter.

E. Rejection of Submissions

Commerce may reject: (1) Any information submitted after the deadlines set forth in this Agreement; (2) any submission that does not comply with the filing, format, translation, service, and certification of documents requirements under 19 CFR 351.303; (3) submissions that do not comply with the procedures for establishing business proprietary treatment under 19 CFR 351.304; (4) submissions that do not comply with any other applicable regulations, as appropriate, or any information that it is unable to verify to its satisfaction. If information is not submitted in a complete and timely fashion or is not fully verifiable, Commerce may use facts otherwise available for the basis of its decision, as it determines appropriate, consistent with section 776 of the Act.

F. Compliance Consultations

1. When Commerce identifies, through import or compliance monitoring or otherwise, that sales may have been made at prices inconsistent with section VI of this Agreement, Commerce will notify each Signatory which it believes is responsible through their Grower Associations' counsel or directly, in the event that the Signatory is not represented by counsel. Commerce will consult with each such party for a period of up to 60 days to establish a factual basis regarding sales that may be inconsistent with section VI of this Agreement.

2. During the consultation period, Commerce will examine any information that it develops or which is submitted, including information requested by Commerce under any provision of this Agreement.

3. If Commerce is not satisfied at the conclusion of the consultation period that sales by such Signatory are being made in compliance with this Agreement, Commerce may evaluate under section 751 of the Act, or section 19 CFR 351.209, whether this Agreement is being violated, as defined in section VIII.E of this Agreement, by such Signatory. Without prejudice to the provisions of section XI of this Agreement, in no event will Commerce terminate the Agreement under this provision outside of the scope of a review under section 751.

G. Operations Consultations

Commerce will consult with the Signatories regarding the operations of this Agreement. The Signatories or Commerce may request such consultations, as necessary.

The Signatories and Commerce may agree to revise the Reference Prices subject to consultations.

VIII. Violations of the Agreement

A. If Commerce determines that there has been a Violation of the Agreement or that the Agreement no longer meets the requirements of sections 734(c) or (d) of the Act, Commerce shall take action it determines appropriate under section 734(i) of the Act and Commerce's regulations.

B. Pursuant to section 734(i) of the Act, Commerce will refer any intentional Violations of the Agreement to CBP. Any person who intentionally commits a Violation of the Agreement shall be subject to a civil penalty assessed in the same amount, in the same manner, and under the same procedures as the penalty imposed for a fraudulent violation of section 592(a) of the Act. A fraudulent violation of section 592(a) of the Act is punishable by a civil penalty in an amount not to exceed the domestic value of the merchandise. For purposes of the Agreement, the domestic value of the merchandise will be deemed to be not less than the Reference Price, as the Signatories agree not to sell the subject merchandise at prices that are less than the Reference Price or to ensure that sales of the subject merchandise are made consistent with the terms of the Agreement.

C. In addition, Commerce will examine the activities of Signatories, Selling Agents, and any other party to a sale subject to the Agreement to determine whether any activities conducted by any party aided or abetted another party's Violation of the Agreement. If any such parties are found to have aided or abetted another party's Violation of the Agreement, they shall be subject to the same civil penalties described in section VIII.B above.

Signatories to this Agreement consent to the release of all information presented to or obtained by Commerce during the conduct of verifications to CBP and/or USDA. Further, through a contractual arrangement, Signatories shall require that the Selling Agent(s) consent to the release of all information presented to or obtained by Commerce during the conduct of verifications to CBP and/or USDA.

D. Any Violation of the terms of this Agreement by a PACA licensee may be deemed by the PACA Division as “unfair conduct” in accordance with the PACA.[44] Commerce, a Signatory, or any other interested person may file with the Secretary of Agriculture a written notification of any alleged violation of the PACA pursuant to section 6(b) of the PACA (7 U.S.C. 499f(b)). Upon receipt of a written notification, the PACA Division will examine the allegation and determine whether further investigation, issuance of a letter of warning, or administrative complaint is warranted. Failure of a PACA licensee to cooperate with an ongoing investigation can lead to suspension of license and publication thereof. When an administrative complaint is filed, a finding by an administrative law judge that a PACA licensee or an entity operating subject to license has engaged in repeated and flagrant violations of the PACA can result in the assessment of a civil penalty, or suspension or revocation of the PACA license and/or publication thereof. Ensuing licensing and employment restrictions are mandated by the PACA Division. Notice of disciplinary actions taken against a licensee or an entity subject to license is released to the public.

E. Examples of activities which Commerce may deem to be Violations of the Agreement include:

1. Sales in which the invoice prices of subject merchandise (after rebates, backbilling, discounts for quality, and other claims) are below the Reference Price.

2. Any act or practice which would have the effect of hiding the real price of the Fresh Tomatoes from Mexico being sold (e.g., a bundling arrangement, on-site processing, commingling tomato products, discounts/free goods financing package, end-of-year rebates, free freight, or a swap or other exchange).

3. Failure to request a USDA inspection on a load in accordance with section VII.C.2.

4. Failure to comply with the requirements of sections VII.C.4, VII.C.5, or VII.C.6.

5. Labeling boxes in a manner that is inconsistent with the labeling provisions of section VII.D.3.b above to circumvent this Agreement.

6. Sales of exports that were not properly assigned by a Signatory producer to a non-producer Signatory through SECON and are therefore inconsistent with section VII.D.2.

7. Failure to provide a quarterly certification in accordance with section VII.D.4.

8. Repeated or routine over filling of boxes beyond reasonable variations in weights for the apparent purpose of circumventing this Agreement.

9. A Signatory's failure to notify Commerce of intended shipments of Fresh Tomatoes from Mexico in boxes for which there is no average weight on the box weight chart in accordance with Appendix C.

10. Sales that are not in accordance with the terms and conditions applied by Commerce when calculating net sales prices for transactions involving adjustments due to changes in quality and condition after shipment as detailed in Appendix D of this Agreement.

11. Selling Signatory tomatoes to Canada in a manner that is not consistent with the requirements of Appendix E of this Agreement.

12. Selling Signatory tomatoes for processing in the United States in a manner that is not consistent with the requirements of Appendix F of this Agreement.

13. Exporting Fresh Tomatoes from Mexico to the United States under a Signatory number different than one's own Signatory number.

14. Failure to comply with the terms of this Agreement.

15. Any other act or practice that Commerce finds is in violation of this Agreement.Start Printed Page 49994

IX. Other Provisions

A. In entering into this Agreement, the Signatories do not admit that any exports of Fresh Tomatoes from Mexico are having or have had an injurious effect on fresh tomato producers in the United States, have caused the suppression or undercutting of prices, or have been sold at less than fair value.

B. Upon request, Commerce will advise any Signatory of Commerce's methodology for calculating its export price (or constructed export price) and normal value in accordance with the Act and Commerce's regulations and procedures, including but not limited to, the calculation methodologies described in Appendix B of this Agreement.

X. Disclosure and Comment

This section provides the terms for disclosure and comment following consultations or during segments of the proceeding not involving a review under section 751 of the Act.

A. If Commerce proposes to revise the Reference Price(s) as a result of agreement between the parties pursuant to consultations under section VII.G of this Agreement, Commerce will disclose the preliminary Reference Price(s), including calculation methodology and all information or data from which that methodology is derived, not less than 30 days before the date on which the price(s) would become final and effective.

B. Not later than seven days after the date of disclosure under paragraph X.A, Interested Parties may submit written comments concerning the proposed Reference Price(s) to Commerce, not to exceed fifteen pages. After reviewing these submissions and after consultations with the Signatories, Commerce will establish the final Reference Price(s).

C. Interested Parties shall file all communications and other submissions made pursuant to section VII or other sections of the Agreement via Commerce's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS), which is available to registered users at https://access.trade.gov and to all parties at the following address:

U.S. Department of Commerce, Central Records Unit, Room B8024, 1401 Constitution Ave. NW, Washington, DC 20230

Such communications and submissions shall be filed consistent with the requirements provided in 19 CFR 351.303.

D. Commerce may make available to representatives of each Interested Party, pursuant to and consistent with 19 CFR 351.304-351.306, any business proprietary information submitted to and/or collected by Commerce pursuant to section VII of this Agreement, as well as the results of Commerce's analysis of that information.

XI. Duration of the Agreement

A. This Agreement has no scheduled termination date. Termination of the suspended investigation will be considered in accordance with the five-year review provisions of section 751(c) of the Act and 19 CFR 351.218.

B. An individual Signatory, or Signatories, collectively, or Commerce may withdraw from this Agreement upon 90 days' written notice to Commerce or the Signatories, respectively.

Jeffrey I. Kessler

Assistant Secretary for Enforcement and Compliance

U.S. Department of Commerce

Date

The following parties hereby certify that the members of their organization agree to abide by all terms of the Agreement:

Lic. Gustavo Rojo Plascencia

President

Confederación de Asociaciones Agrícolas del Estado de Sinaloa, A.C.

Date

Ing Rosario Antonio Beltran Ureta

President

Sistema Producto Tomate

Date

Oscar Woltman De Vries

President

Asociación Mexicana de Horticultura Protegida, A.C.

Date

Antonio Roberto Gandara Gonzalez

President

Asociación de Productores de Hortalizas del Yaqui y Mayo

Date

Salvador Garcia Valdez

President

Consejo Agrícola de Baja California, A.C.

Date

Andrew Jaxa-Debicki

Arent Fox, LLP—Counsel

For NS Brands, Ltd.

Date

Appendix A—Agreement Suspending the Antidumping Duty Investigation on Fresh Tomatoes From Mexico—Reference Prices

Consistent with the requirements of section 734(c) of the Act, to eliminate completely the injurious effect of exports to the United States and to prevent the suppression or undercutting of price levels of domestic fresh tomatoes, the Reference Prices are as follows:

Reference Price in U.S. Dollars per Pound (lb.)

[FOB U.S. shipping point, i.e., U.S. side of the U.S.-Mexico border] 45

Fresh Tomatoes Other Than Organic TomatoesRound and Roma0.31
Stem On0.46
Tomatoes on the Vine0.50
Specialty—Loose0.49
Specialty—Packed0.59
Organic TomatoesRound and Roma0.434
Stem On0.644
Tomatoes on the Vine0.70
Specialty—Loose0.686
Specialty—Packed0.826

The Reference Price for each type of box shall be determined based on the average weights stated in the chart contained in Appendix C of the Agreement. The delivered sales price to a Buyer for all Fresh Tomatoes from Mexico exported directly, or indirectly through a third country, to the United States shall include all movement and handling expenses beyond the point of entry into the United States (e.g., McAllen, Nogales, or Otay Mesa) and in excess of the Reference Price, i.e., the FOB U.S. shipping point price.

Appendix B—Agreement Suspending the Antidumping Duty Investigation on Fresh Tomatoes From Mexico—Analysis of Prices at Less Than Fair Value

A. Normal Value

The cost or price information reported to Commerce that will form the basis of the normal value (NV) calculations for purposes of the Agreement must be comprehensive in Start Printed Page 49995nature and based on a reliable accounting system (e.g., a system based on well-established standards and can be tied either to the audited financial statements or to the tax return filed with the Mexican government).

1. Based on Sales Prices in the Comparison Market

When Commerce bases normal value on sales prices, such prices will be the prices at which the foreign like product is first sold for consumption in the comparison market in the usual commercial quantities and in the ordinary course of trade. Also, to the extent practicable, the comparison shall be made at the same level of trade as the export price (EP) or constructed export price (CEP).

Calculation of NV:

Gross Unit Price

+/− Billing Adjustments

− Movement Expenses

− Discounts and Rebates

− Direct Selling Expenses

− Commissions

− Home Market Packing Expenses

= Normal Value (NV)

2. Constructed Value

When normal value is based on constructed value, Commerce will compute constructed values (CVs) for each growing season, as appropriate, based on the sum of each respondent's growing and harvesting costs for each type of tomato, plus amounts for selling, general and administrative expenses (SG&A), U.S. packing costs, and profit. Commerce will collect this cost data for an entire growing season in order to determine the accurate per-unit CV of that growing season.

Calculation of CV:

+ Direct Materials

+ Direct Labor

+ Factory overhead

= Cost of Manufacturing

+ Home Market SG&A*

= Cost of Production

+ U.S. Packing

+ Profit*

= Constructed Value (CV)

* SG&A and profit are based on home-market sales of the foreign like product made in the ordinary course of trade. SG&A includes financing but not movement expenses.

B. Export Price and Constructed Export Price

EP and CEP refer to the two types of calculated prices for merchandise imported into the United States. Both EP and CEP are based on the price at which the subject merchandise is first sold to a person not affiliated with the foreign producer or exporter.

Calculation of EP:

Gross Unit Price

− Movement Expenses

− Discounts and Rebates

+/−Billing Adjustments

+Packing Expenses

+Rebated Import Duties

= Export Price (EP)

Calculation of CEP:

Gross Unit Price

− Movement Expenses

− Discounts and Rebates

+/− Billing Adjustments

− Direct Selling Expenses

− Indirect Selling Expenses that relate to commercial activity in the United States

− The cost of any further manufacture or assembly incurred in the United States

− CEP Profit

+ Rebated Import Duties

− Commissions

= Constructed Export Price (CEP)

C. Fair Comparisons

To ensure that a fair comparison with EP or CEP is made, Commerce will make adjustments to normal value. Commerce will adjust for physical differences between the merchandise sold in the United States and the merchandise sold in the home market. For EP sales, Commerce will add in U.S. direct selling expenses, U.S. commissions [46] and packing expenses. For CEP sales, Commerce will subtract the amount of the CEP offset, if warranted, and add in U.S. packing expenses.

Appendix C—Agreement Suspending the Antidumping Duty Investigation on Fresh Tomatoes From Mexico—Box Weights

Commerce has the sole authority to make revisions to the Box Weight Charts used to apply the applicable reference price to particular box configurations. The Reference Prices for each pack style or box configuration shall be determined based on the average net weights stated in the Box Weight Charts below.

Commerce shall commence and complete a box weighing exercise within 12 months following the signature of this Agreement, and thereafter, at such times as considered appropriate by Commerce. From the Effective Date, until such time as the box weight exercise is completed, the box weights from the previous 2013 suspension agreement will be incorporated into this current agreement, with necessary additions or modifications.

All weighing exercises may occur at a U.S. Customs and Border Protection (CBP) port facility, at U.S. Selling Agent facilities, in bonded compounds, or at Signatory packhouses, at the sole discretion of Commerce. For weighing exercises conducted at a CBP port facility, Commerce will coordinate with CBP in its collection and review of data for calculating and monitoring box-specific average weights, as appropriate.

Commerce will provide 14 hours advance notice to the Signatories (through the Grower Associations' counsel or directly to the Signatories, in the event that they are not represented by counsel) of the commencement of any box weighing exercise. Subject to approval by Commerce and CBP, as appropriate, Commerce will undertake best efforts to ensure that at least two, but no more than four representatives of the Signatories are permitted access to a port or other facility to observe the box weighing exercise. Observers will be chosen by the Grower Associations. Any requests for additional observers from Signatories not represented by the Grower Associations' counsel will be considered by Commerce. In the event that no otherwise qualified observers are permitted by CBP to enter a port facility, Commerce will either delay the exercise until at least one qualified observer is present or, at its discretion, will conduct the box weighing exercise at an alternate location.[47]

To derive representative average net weights [48] for each box type in the charts below, and any configurations that may be added, Commerce will weigh twenty sample boxes from ten shippers for high-volume pack types,[49] a minimum of two shippers for low-volume pack types, and five shippers for all other pack types. All shippers will be randomly chosen, without notice to the specific shippers.

Observers may raise bona fide challenges to the recording of the weight of a particular box at the time it is weighed and must specify the nature of the challenge.[50] The parties will endeavor to resolve any such challenges immediately at the time of the weighing. A box weight will not be recorded if a bona fide challenge is not resolved. No challenges to the weight of a box will be considered once its weight has been recorded.

If Commerce determines to revise an average weight figure based upon information that an average weight on the chart is no longer accurate or to provide an average weight for a box configuration not currently on the chart, Commerce will provide at least fifteen days' notice to Signatories (through the Grower Associations' counsel or directly to the Signatories, in the event that they are not represented by counsel) prior to the effective date of such revised average weights for purposes of this Agreement. Commerce will determine the revised average weight in accordance with the procedure described above.

In the event that a Signatory intends to export subject merchandise to the United States in a box for which there is no average weight on the chart, the Signatory shall notify Commerce in writing no later than five business days prior to the date of the first exportation of such boxes to the United States. Signatories can obtain a copy of the suggested form for submitting this Start Printed Page 49996information from Commerce's website at: https://enforcement.trade.gov/​tomato. This information must be submitted to Commerce in accordance with the filing instructions set forth in Commerce's regulations. Commerce shall allow any Interested Party to submit written comments, not to exceed ten pages, on the appropriate average weight for the box within seven days after the filing of the written notification by the Signatory, and Commerce shall inform the Signatory or its representative of the average weight for the box no later than thirty days after filing of the written notification by the Signatory. A Signatory's failure to notify Commerce of intended shipments of tomatoes in boxes for which there is no average weight on the box weight chart may constitute a Violation of the Agreement in accordance with section VIII.E.9.

Box-Weight Chart—Round and Roma Suspension of Antidumping Investigation on Fresh Tomatoes From Mexico

TBD

Box-Weight Chart—Stem on Suspension of Antidumping Investigation on Fresh Tomatoes From Mexico

TBD

Box-Weight Chart—Tomatoes on the Vine Suspension of Antidumping Investigation on Fresh Tomatoes From Mexico

TBD

Box-Weight Chart—Specialty—Loose Suspension of Antidumping Investigation on Fresh Tomatoes From Mexico

TBD

Box-Weight Chart—Specialty—Packed Suspension of Antidumping Investigation on Fresh Tomatoes From Mexico

TBD

Appendix D—Agreement Suspending The Antidumping Duty Investigation On Fresh Tomatoes From Mexico—Procedures for Making Adjustments to the Sales Price Due to Certain Changes in Condition After Shipment

The purpose of this appendix is to explain the procedures for making adjustments to the sales price of Signatory tomatoes due to certain changes in condition after shipment following USDA inspections at destination points (e.g., receiver facilities). Where a partial lot is being rejected, the net sales price of all accepted tomatoes in the lot shall result in a unit price that is not less than 100 percent of the applicable Reference Price established in Appendix A minus the per-unit USDA inspection fees and per-unit freight expenses attributable to the defective tomatoes. In such cases, the following formula shall be satisfied: 51

Appendix G of the Agreement outlines specific actions that Signatories should take to ensure that their efforts to abide by the Agreement are upheld in any claims taken to USDA under PACA.

To facilitate the verification of claims for changes in condition after shipment, the contracts between the Signatory and the Buyer (if no Selling Agent(s) is included in the distribution chain) or between the Signatory, Selling Agent(s), and the Buyer must establish that all documentation be completed within 15 business days after the USDA inspection, and that claims be resolved within 15 business days after the USDA inspection, unless the claim is referred to PACA for mediation. Failure to complete this documentation in a timely manner may constitute a Violation of the Agreement in accordance with section VIII.E.10. When filing quarterly certifications with Commerce in accordance with section VII.D.4, Signatories must report the number of lots on which claims for quality and condition defects were granted, the total volume of tomatoes destroyed, the total value of claims granted, and the total value of payments made to the Buyer by the Signatory and/or Selling Agent.

Upon request from Commerce at any time, whether for sales made directly, or indirectly through a Selling Agent, to the Buyer, Signatories must provide a worksheet detailing all adjustments, expenses, and payments to the Buyer by the Signatory or Selling Agent related to such reported claims for quality and condition defects in a given quarter, with a reconciliation to the invoice price and supporting documentation to include the CBP entry packet (if available), USDA inspection certificates, Commerce's Accounting Sales and Cost form, bills of lading, invoices, credit memos, freight invoices, reconditioning/repacking invoices, inspection fees, as well as destruction receipts, donation certificates, and or/proof of return.

A. USDA Inspection and Adjustments

1. No adjustments will be made for failure to meet suitable shipping conditions unless supported by an unrestricted USDA inspection. A USDA inspection certificate reflecting the unrestricted USDA inspection must be provided to support claims for rejection of full or partial lots. The USDA inspection certificate should identify all quality and condition defects identified in paragraph 5 that are found in the inspection.

2. If the USDA inspection indicates that the lot has: (1) Over 8% soft/decay condition defects; (2) over 15% of any one quality or condition defect; or (3) greater than 20% total quality and/or condition defects, the receiver may reject the lot or may accept a portion of the lot and reject the quantity of tomatoes lost during the salvaging process. In those instances, price adjustments will be calculated as described below. For purposes of this Agreement, a quality or condition defect is any defect listed in the charts in part A.5 below. When a lot of tomatoes has quality and condition defects in excess of those outlined above as documented on a USDA inspection certificate, the documented percentage of the tomatoes with quality and condition defects are considered DEFECTIVE tomatoes.

3. No adjustments will be made for failure to meet suitable shipping conditions if the USDA inspection certificate does not indicate one of the quality or condition thresholds outlined above.

4. The USDA inspection must be requested no more than eight hours from the time of arrival at the destination specified by the receiver and be performed in a timely fashion thereafter. If there is more than one USDA inspection on a given lot, the inspection certificate corresponding to the first inspection is the one that will be used for making any adjustment to the sales price. However, if an appeal inspection is conducted which reverses the original inspection, it will supersede the first inspection, as long as the appeal inspection Start Printed Page 49997is requested within a reasonable amount of time not to exceed 12 hours from the first inspection.

The first receiver of the product, regardless of whether that receiver is acting on behalf of a Buyer or whether the receiver is the Buyer acting on its own right, must specify the city/metropolitan area of the destination of the product. The inspection will take place at the destination of delivery as specified prior to shipment.

No adjustments will be granted for a USDA inspection at a destination which is different from the destination specified by the first receiver of the product. In the event that the first receiver does not specify the city/metropolitan area of the destination of the product, the eight-hour period within which an inspection may be requested will begin to run at such time as title to the product transfers to the unrelated purchaser, for example, upon loading of the product at the first handler's (importer's) warehouse in an FOB transaction and upon delivery of the product to the Buyer's warehouse in a delivered sale.

A person or company shall be considered a broker for a Buyer: (1) When that person or company falls within the description of types of broker operations set forth in 7 CFR 46.27; or (2) has provided a broker's memorandum of sale as set forth in 7 CFR 46.28(a). The following paragraphs apply if a broker or dealer is involved in the transaction.

A broker, unlike a dealer, does not take ownership or control of the tomatoes but arranges for delivery directly to the vendor or purchaser. Because a broker never takes ownership or control over, or title to, the tomatoes, the Buyer and not the broker may request an inspection, and only the Buyer is entitled to any resulting adjustments. The inspection would take place at the Buyer's destination, as specified in the broker's contract with the Selling Agent.

When a dealer is involved in the sale, the destination of delivery stated in the contract is where the inspection is to take place. If the dealer does not specify the destination of delivery, the default destination of delivery is the warehouse of the Selling Agent. With respect to a lot of tomatoes that is owned or controlled by a dealer, it is the responsibility of the dealer to request an inspection of the tomatoes in his possession in a timely manner, if he deems it necessary. If the dealer does not request an inspection in a timely manner (i.e., within eight hours from the time of arrival at the destination specified by the dealer) and resells the tomatoes to a third party, which does request an inspection, the dealer is then responsible for all costs and adjustments pertaining to the inspection and the condition or quality of the tomatoes.

5. Under this Agreement, adjustments to the sales price of Signatory tomatoes will be permitted for all condition defects as well as the quality defect noted below. The term “condition defect” is intended to have the same definition recognized by USDA's Specialty Crops Inspection Division and, therefore, covers the following items:

Condition defects
(1) Abnormal Coloring
(2) Abnormally Soft and Watery Fruit
(3) Blossom End Discoloration
(4) Bruises
(5) Chilling Injury
(6) Cuts and Broken Skins (unhealed)
(7) Discolored Seed Areas
(8) Freezing and Freezing Injury
(9) Insect/Worm Injury (alive when present)
(10) Internal Discoloration
(11) Moldy and/or Decayed Stems
(12) Nailhead Spot
(13) Shriveling
(14) Skin Checks
(15) Soft/Decay
(16) Soil Spot
(17) Surface Discoloration (Silvery-White and Gold Fleck)
(18) Sunburn
(19) Sunken Discolored Areas
(20) Waxy Blister
(21) White Core

The term “quality defects” is intended to have the same definition recognized by USDA's Specialty Crops Inspection Division and covers the following subset of such items:

Quality defects
(1) Puffiness

6. In calculating the transaction price for lots subject to an adjustment claim for quality and condition defects, as defined above, the tomatoes classified as DEFECTIVE will be treated as rejected and as not having been sold.

B. Contractual Terms for Rejection of Partial Lots

If the lot contains quality and condition defects greater than those outlined above and the receiver does not reject the entire lot of tomatoes, Commerce will factor certain adjustments into the transaction price. Specifically, the Signatory or Selling agent, as applicable, may reimburse the Buyer for the inspection fees listed on the USDA inspection certificate and the freight expenses attributable to the defective tomatoes.

1. The per-unit price invoiced to and paid by the Buyer for the accepted tomatoes must not fall below the Reference Price minus the per-unit USDA inspection fees and per-unit freight expenses attributable to the defective tomatoes, in accordance with the above-specified formula.

2. The Signatory or Selling Agent, as applicable, may reimburse the Buyer for the portion of freight expenses allocated to the DEFECTIVE tomatoes.

3. The Signatory or Selling Agent, as applicable, may reimburse the Buyer for the inspection fees attributable to the DEFECTIVE tomatoes and listed on the USDA inspection certificate.

4. Any reimbursements from, by, or on behalf of the Signatory or Selling Agent, as applicable, that are not specifically mentioned in item B.2 and B.3 above, or that are not properly documented, will be not be allowed to be factored into the calculation of the price for the accepted tomatoes.

5. The Buyer may not keep or resell the DEFECTIVE tomatoes either directly or through third parties.[2] Such tomatoes must be destroyed under USDA oversight, with a USDA certificate provided to the Buyer, Signatory, or Selling Agent as proof of destruction. Proof of such destruction must be maintained by the Buyer, Signatory, or Selling Agent and is subject to submission to, and verification by, Commerce.

6. In addition, for each transaction involving adjustments due to changes in condition after shipment the Signatory or Selling Agent, as applicable, must obtain/maintain the following documents/information:

—Shipper name;

—Shipping manifest;

—Details of the shipper invoice, including invoice number, date, brand, tomato type, quantity (boxes), and value;

—Documentation supporting the freight expenses incurred for the original shipment;

—USDA inspection certificate;

—Detailed listing of the expenses incurred in salvaging the non-DEFECTIVE tomatoes and documentation supporting the expenses;

—Description of the destruction process and documentation from the landfill;

—USDA destruction certificate;

—Proof-of-payment documentation for any destruction costs;

—A statement that “No monies or other compensation were received for the destroyed tomatoes;”

—Signature of a responsible official at the receiver.

C. Contractual Terms for Rejection of Full Lots

In cases where the Buyer has rejected the full lot of tomatoes based on quality and condition defects, the Signatory or Selling Agent, as applicable, may choose to have the entire lot destroyed or returned. If the entire lot is destroyed, the Signatory or Selling Agent, as applicable, will require the receiver to provide the documentation noted above under B.5 for partial-lot rejections. Further, the Signatory or Selling Agent, as applicable, may reimburse the Buyer for ordinary and customary freight and USDA inspection expenses that the Buyer incurred with respect to the lot as long as the Signatory or Selling Agent, as applicable, obtains the support documentation specified above under B.5. Commerce will treat such transactions as “non-sales” provided that adequate support documentation is available.

Alternatively, the Signatory or Selling Agent, as applicable, may sell the entire rejected lot to another Buyer (the “Final Buyer”). In that case, the price paid must be not less than the Reference Price plus all costs incurred (e.g., transportation, commissions, etc.) from the FOB U.S. shipping point, i.e., U.S. side of the U.S.-Mexico border to the Final Buyer. If the Final Start Printed Page 49998Buyer finds that the lot contains quality and condition defects greater than those outlined above, it shall follow the directions stated above with respect to rejection of partial lots.

The Buyer may reject the full lot of tomatoes if the lot contains more than 35 percent quality and condition defects, as listed in the charts in part A.5, based on a USDA inspection certificate. Additionally, the Signatory (both in cases of direct sales as well as in cases of indirect sales through a Selling Agent(s)) must pay all expenses related to the return of the entire lot to Mexico. Such rejected lots may not be sold, donated, or destroyed in the United States. Commerce may request at any time, and Signatories agree to provide, any and all documentation related to such rejections.

D. Contractual Terms for Partial vs. Unrestricted Lot Inspections

As explained in part A.1 above, Commerce will only allow adjustments to the transaction price for quality and condition defects if the USDA inspection is unrestricted. During the time between the call for inspection and the arrival of the USDA inspector, the Buyer might sell part of the lot and, therefore, by the time the USDA inspector arrives, that part is not available for inspection. If the USDA inspector is allowed full access to the partial lot, Commerce will consider this an unrestricted partial-lot inspection. Alternatively, if the USDA inspector is not allowed full access to the partial lot, Commerce will deem it a restricted inspection. No adjustments will be made for failure to meet suitable shipping conditions or for quality defects if the USDA inspection is restricted. For purposes of this Agreement, when calculating an adjustment for failure to meet suitable shipping conditions where an unrestricted partial-lot inspection has taken place, only the portion of the lot inspected is eligible for adjustment. The portion of the lot that the Buyer sold prior to the inspection will not be eligible for an adjustment based on the USDA inspection.

For example, before the USDA inspector arrives, the Buyer sells 140 boxes of 5x5s from a lot identified as 160 5x5s on the invoice. When the USDA inspector arrives, the Buyer requesting the inspection provides full access to the partial lot within its possession. The inspector finds that the partial lot of 20 5x5s has soft/decay condition defects of 25 percent and notes this on this inspection certificate. Under the Agreement, only the 20 5x5s are eligible for an adjustment for failure to meet suitable shipping conditions, and the 140 5x5s that the Buyer already sold will not be eligible for an adjustment based on the USDA inspection.

Appendix E—Agreement Suspending the Antidumping Duty Investigation on Fresh Tomatoes From Mexico—Contractual Arrangement for Documenting Sales of Signatory Merchandise to Canada

Where a Signatory or Selling Agent enters Fresh Tomatoes into the United States for consumption and then re-exports the subject merchandise to Canada, this appendix applies. The purpose of this appendix is to: (1) Outline the process that each Signatory to this Agreement must follow to ensure that the Signatory or Selling Agent properly documents sales to Canada as such and (2) ensure that the Signatory notifies the Canadian customer that any resales of its merchandise from Canada into the United States must be in accordance with the terms of this Agreement.

To document sales of Mexican tomatoes to Canada properly, this Agreement requires that such transactions be made pursuant to a contractual arrangement where each Signatory maintains, or requires that the Selling Agent that facilitates the sale to Canada maintains, the following information in its files:

1. Signatory name and Signatory number;

2. Shipping manifest;

3. An invoice identifying sale date, brand, tomato type, quantity (boxes), and value; and

4. Entry documentation from Canadian Customs (i.e., Landing Form (Form B3) or the Canada Customs Coding Form).

If a Signatory to the Agreement or its Selling Agent does not document a sale to Canada in accordance with the procedures outlined above, Commerce will consider the transaction a U.S. sale. Failure to properly document a sale to Canada may constitute a Violation of the Agreement in accordance with section VIII.E.11.

Signatories must ensure that the Canadian customer is notified that any resale of the Signatory merchandise from Canada into the United States must be in accordance with the terms of the Agreement, including the box labeling requirements in section VII.D.3.b, and that any movement or handling expenses beyond the point of entry into the United States must be added to the Reference Price, i.e., the FOB U.S. shipping point price, and must reflect the actual cost for an arm's-length transaction. Signatories can obtain from Commerce's website a copy of the suggested form for providing such notification. See “Form for Notifying Canadian Customer That Resales of Signatory Merchandise Into the United States Are Covered by the Terms of the 2019 Suspension Agreement” at https://enforcement.trade.gov/​tomato. Further, through contractual arrangement each Signatory must maintain, or require that the Selling Agent maintains, evidence in its files to document that the Canadian customer was notified that any resales of the Signatory merchandise from Canada into the United States must be in accordance with the terms of the Agreement.

Appendix F—Agreement Suspending the Antidumping Duty Investigation on Fresh Tomatoes From Mexico—Procedure Signatories Must Follow for Selling Subject Merchandise for Processing

Sales to the United States of Signatory tomatoes for processing must be:

1. Sold directly to a processor (in other words, the first purchaser in the United States of tomatoes for processing must be an actual processor);

2. Accompanied by an “Importer's Exempt Commodity Form”—Form FV-6, within the meaning of 7 CFR 980.501(a)(2) and 980.212(i), should be used for all tomatoes for processing that are covered by the Federal Marketing Order 966 (Marketing Order); tomatoes for processing that are not covered by the Marketing Order (e.g., romas, grape tomatoes, greenhouse tomatoes, and any tomatoes that are entered during the part of the year that the Marketing Order is not in effect) must be accompanied by the “2019 Suspension Agreement—Tomatoes for Processing Exemption Form”. The exempt commodity form must be maintained by the importer and presented to CBP upon request and both the Signatory or Selling Agent, as applicable, and the processor must maintain a copy of the form.

3. Shipped in a packing form that is not typical of tomatoes for the fresh market (e.g., bulk containers in excess of 50 lbs.)—examples of typical fresh-market packing forms are identified in the Box-Weight Chart in Appendix C of the Agreement; and

4. Clearly labeled on the packaging as “Tomatoes for Processing.”

Signatories can obtain from Commerce's website an example of the “2019 Suspension Agreement—Tomatoes for Processing Exemption Form.” See https://enforcement.trade.gov/​tomato. If a party in the United States facilitates the transaction, through contractual arrangement each Signatory must require that the party follow the procedures outlined above. Failure to properly document sales to processors may constitute a Violation of the Agreement in accordance with section VIII.E.12.

Sales of Signatory merchandise to a processor after importation into the United States are a Violation of the Agreement in accordance with section VIII.E.12.

Appendix G—Agreement Suspending the Antidumping Duty Investigation on Fresh Tomatoes From Mexico—Specific Actions That Signatories Should Take To Ensure That Their Efforts To Abide by the Agreement Are Upheld in Any Claims Taken to the U.S. Department of Agriculture Under The Perishable Agricultural Commodities Act

This appendix provides guidance on the specific actions Signatories can take to ensure that their efforts to abide by the Agreement are upheld in any claims taken to USDA under PACA.

Payment disputes arising under the Agreement are actionable and/or able to be resolved under the PACA dispute resolution procedure. The PACA Division will uphold actions taken by a Signatory or a Signatory's representative (collectively, Signatory) to comply with the Agreement to the extent that the sales contract for the transaction at issue establishes that the sale is subject to the terms of the Agreement.

In other words, if, prior to making the sale, the Signatory, or the Selling Agent acting on behalf of the Signatory through a contractual arrangement, informs the customer (i.e., the Buyer) that the sale is subject to the terms of the Agreement and identifies those terms, the PACA Division will recognize the identified terms of the Agreement as integral to the sales contract. In particular, Signatories Start Printed Page 49999should inform their customers that their contractual agreement to allow defect claim adjustments is limited in accordance with the Agreement, including:

* Claims for adjustments must be supported by an unrestricted USDA inspection called for no more than eight hours from the time of arrival at the receiver and performed in a timely fashion thereafter.

* The USDA inspection must find that the quality and/or condition defects exceed the thresholds outlined in Appendix D above.

* Any price adjustments will be limited to the actual percentage of quality and/or condition defects as documented by a USDA inspection certificate.

* The price adjustments will be limited to USDA inspection fees and the allocated freight expense attributable to the defective tomatoes calculated in accordance with Appendix D above.

* The customer may not resell any DEFECTIVE tomatoes. Instead, they must be destroyed or returned. Signatories should provide a copy of the Agreement to any customer which may be unfamiliar with its terms or which has questions about those terms.

The process by which a Signatory could provide evidence to the PACA Division that its sales contracts were made subject to the terms of the Agreement including, in particular, those terms listed above is outlined below.

* The Signatory should maintain written documentation demonstrating that it had informed its customers, and the customers accepted, that the sales were subject to the terms of the Agreement prior to issuing the invoice. A signed contract to that effect would be the best evidence of that fact; however, a purchase by the customer after being informed of the relevance of the Agreement is evidence of acceptance.

* The Signatory should send letters to its customers via registered mail, return receipt requested, overnight mail, or email with a confirmation received from the recipient, informing the customers that, as a Signatory to the Agreement, all of the Signatory's sales are subject to the terms of the Agreement and that, by purchasing from them, the Buyer agrees to those terms. The letter should also indicate that the Signatory's sales personnel do not have authority to alter the terms of the Agreement.

* In addition, the Signatory should include a statement on its order confirmation sheets that its contract with the buyer is subject to the terms of the Agreement as detailed in the Signatory's “pre-season” letter and maintain a copy of the order confirmations and fax receipts demonstrating that they were sent to the customer prior to making the sale. If the sale is to a first-time purchaser that did not receive a “pre-season” letter, a letter should be supplied to the buyer prior to making a sale.

PACA does not require any one particular form of written documentation but USDA officials have confirmed that, if Signatories maintain written evidence demonstrating that their customers were informed that their sales were made subject to the terms of the Agreement prior to sale, PACA will recognize those terms as part of the sales contract.

Appendix H—Agreement Suspending The Antidumping Duty Investigation on Fresh Tomatoes From Mexico—Procedures for Reporting Alleged Violations or Circumvention of the Agreement

Appendix H enables persons with knowledge of suspected Violations [52] of the Agreement to inform Commerce by emailing the below form to Commerce officials. The form and any factual information provided will be placed on the record of the proceeding by Commerce officials. The person submitting the form and factual information to Commerce is, pursuant to 19 CFR 351.303(g), required to include a certification of factual information, and should use the applicable certification formats provided therein. All submissions, if business proprietary treatment for certain information is claimed under Commerce's regulations, must be accompanied by a public version, in accordance with the requirements of 19 CFR 351.304.

NAME OF PERSON MAKING REPORT:
COMPANY AFFILIATION:
PHONE NUMBER:
E-MAIL ADDRESS:
ALLEGED VIOLATION:
(Please attach any documents to this report and add blank pages if needed)
End Supplemental Information

Footnotes

1.  See Initiation of Antidumping Duty Investigation: Fresh Tomatoes from Mexico, 61 FR 18377 (April 25, 1996).

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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).

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3.  See Suspension of Antidumping Investigation: Fresh Tomatoes from Mexico, 61 FR 56618 (November 1, 1996).

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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).

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5.  See Suspension of Antidumping Investigation: Fresh Tomatoes from Mexico, 67 FR 77044 (December 16, 2002).

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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).

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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).

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8.  See Suspension of Antidumping Investigation: Fresh Tomatoes from Mexico, 73 FR 4831 (January 28, 2008).

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9.  Section IV.G of the 2008 Agreement stated that Commerce would consult with signatory producers/exporters regarding the operations of the 2008 Agreement. A party could 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.

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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).

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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).

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12.  See Fresh Tomatoes from Mexico: Suspension of Antidumping Investigation, 78 FR 14967 (March 8, 2013).

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13.  I.e., Confederación de Asociaciones Agrícolas del Estado de Sinaloa, A.C., Consejo Agrícola de Baja California, A.C., Asociación Mexicana de Horticultura Protegida, A.C., Asociación de Productores de Hortalizas del Yaqui y Mayo, and Sistema Producto Tomate.

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14.  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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15.  See Initiation of Five-Year (Sunset) Reviews, 83 FR 4641 (February 1, 2018).

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16.  See Initiation of Antidumping and Countervailing Duty Administrative Reviews (Initiation of Administrative Review), 83 FR 19215 (May 2, 2018).

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17.  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).

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18.  See Letter to Wilbur Ross, Secretary of Commerce, from FTE, “Fresh Tomatoes from Mexico: Request to Terminate Antidumping Suspension Agreement,” dated November 14, 2018.

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19.  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.

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20.  See Letter to Wilbur Ross, Secretary of Commerce, from CAADES et al., “2013 Suspension Agreement on Fresh Tomatoes from Mexico,” dated November 26, 2018.

21.  See Letter to Wilbur Ross, Secretary of Commerce, from CAADES et al., “2013 Suspension Agreement on Fresh Tomatoes from Mexico,” dated November 28, 2018.

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22.  See Letter to Wilbur Ross, Secretary of Commerce, from NatureSweet, “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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23.  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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24.  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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25.  See Fresh Tomatoes From Mexico: Termination of Suspension Agreement, Rescission of Administrative Review, and Continuation of the Antidumping Duty Investigation, 84 FR 20858 (May 12, 2019) (Continuation Notice).

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26.  See Continuation Notice, 84 FR at 20860-61.

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27.  Id., 84 FR at 20861.

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28.  See Memorandum, “Less-Than-Fair-Value Investigation of Fresh Tomatoes from Mexico: Respondent Selection” (May 24, 2019).

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29.  See Memorandum to Jeffrey I. Kessler, Assistant Secretary for Enforcement and Compliance, “Post-Preliminary Decision Memorandum in the Less-Than-Fair-Value Investigation of Fresh Tomatoes from Mexico” (July 23, 2019).

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30.  See Letter to All Interested Parties, “Draft Agreement Suspending the Antidumping Duty Investigation on Fresh Tomatoes,” (August 20, 2019).

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31.  See Letter to Ms. Nannette Christ, Director for Office of Investigations, U.S. ITC, “Fresh Tomatoes from Mexico: Initialed Draft Agreement,” (August 21, 2019).

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32.  See Letter to All Interested Parties, “Draft Agreement Suspending the Antidumping Duty Investigation on Fresh Tomatoes from Mexico: Draft Statutory Memoranda,” (August 21, 2019).

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33.  The following parties submitted comments: CAADES et al.; FTE; the Government of Mexico; the Tomato Division of the Fresh Produce Association of the Americas; NatureSweet; Red Sun Farms; Otay Mesa Chamber of Commerce; the Border Trade Alliance; the American Trucking Association; and Walmart Inc.

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34.  See Continuation Notice, 84 FR at 20861.

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35.  See Section 777(c)(1) of the Act; see also 19 CFR 351.103, 351.304, 351.305, and 351.306.

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36.  The resumption of the investigation and negotiation of a new suspension agreement were conducted in accordance with Commerce's regulations in effect at the time of the original investigation, 19 CFR 353.18 (1996). Because this Agreement constitutes a new segment of the proceeding, the Agreement is governed by the regulations currently in effect. 19 CFR 351.701; see also San Vicente Camalu SPR de Ri v. United States, 491 F. Supp. 2d 1186 (CIT 2007).

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37.  See Initiation of Antidumping Duty Investigation: Fresh Tomatoes From Mexico, 61 FR 18377 (April 25, 1996).

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38.  For purposes of the Agreement, a lot is defined as a grouping of tomatoes in a particular shipment that is distinguishable by packing type.

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39.  The timelines specified in section VII.C.1 will be tolled per any Commerce tolling instituted during the relevant periods.

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40.  As defined in 19 CFR 101.1 of CBP's regulations.

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41.  This may be done by using “PACA SEARCH” on the PACA website at www.usda.gov/​paca, or by calling the PACA National License Center Customer Service line at 1-800-495-7222, ext #1.

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42.  Signatories may continue to use boxes with markings from the 2013 Suspension Agreement through three months from the Effective Date, but they must add the type of tomato being shipped to the existing labeling on the box, i.e., Round, Roma, Specialty, Stem On, or Tomatoes on the Vine.

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43.  The quarters are December 1-February 28, March 1-May 31, June 1-August 30, and September 1-November 30.

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44.  Although not a party to this Agreement, the actions of a Buyer who is a PACA licensee or is operating subject to license that aid or abet a Violation of the Agreement may constitute an unfair trade practice that violates the PACA.

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45.  The Reference Prices will remain in effect until changed. In accordance with section VII.G of the Agreement, the Reference Prices may be revised. No revision will be considered before one year from the Effective Date.

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46.  If there are not commissions in both markets, then Commerce will apply a commission offset.

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47.  Assuming proper notice is provided and necessary government approval is granted, it is the Signatories' responsibility to ensure that their representatives observe the box weighing exercise, or the right to observe is waived.

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48.  Average net weights are calculated by deducting the tare weight from the average gross box weight. For each twenty-box sample, the tare weight will be calculated by weighing a minimum of two empty boxes. If the differences in the weights of the boxes exceed two-hundredths of a pound, additional boxes will be weighed to establish the tare. Irrespective of any deviation, the average weight of five boxes will be sufficient to establish the tare.

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49.  The 25-pound box configuration is an example of a high-volume pack type.

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50.  Examples of bona fide challenges may include the non-random selection of trucks, loads or boxes, or selection of wet, damaged, or compromised boxes or pallets.

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2.  Tomatoes for processing must be handled in accordance with the guidelines set forth in Appendix F of the Agreement.

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52.  See sections II.V and VIII.E of the Agreement.

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[FR Doc. 2019-20813 Filed 9-23-19; 8:45 am]

BILLING CODE 3510-DS-P