73 FR 4831, January 28, 2008

DEPARTMENT OF COMMERCE

International Trade Administration

[A-201-820]

 
Suspension of Antidumping Investigation: Fresh Tomatoes From 
Mexico

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

ACTION: Notice of suspension of antidumping investigation on fresh 
tomatoes from Mexico.

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EFFECTIVE DATE: January 22, 2008.
SUMMARY: The Department of Commerce has suspended the antidumping 
investigation involving fresh tomatoes from Mexico. The basis for the 
suspension of the antidumping investigation is an agreement between the 
Department of Commerce and producers/exporters accounting for 
substantially all imports of fresh tomatoes from Mexico wherein each 
signatory producer/exporter has agreed to revise its prices to 
eliminate completely the injurious effects of exports of this 
merchandise to the United States.

FOR FURTHER INFORMATION CONTACT: Judith Wey Rudman or Jay Carreiro at 
(202) 482-0192 or (202) 482-3674, respectively; Office of Policy, 
Import Administration, International Trade Administration, U.S. 
Department of Commerce, 14th Street & Constitution Avenue, NW., 
Washington, DC 20230.

SUPPLEMENTARY INFORMATION:

Applicable Statute and Regulations

    Unless otherwise indicated, all citations to the statute are 
references to the provisions effective January 1, 1995, the effective 
date of the amendments made to the Tariff Act of 1930 (the Act) by the 
Uruguay Round Agreements Act. In addition, unless otherwise indicated, 
all citations to Department of Commerce (Department) regulations refer 
to the regulations codified at 19 CFR part 353 (1996).

Background

    On April 18, 1996, the Department initiated an antidumping 
investigation to determine whether imports of fresh tomatoes from 
Mexico are being, or are likely to be, sold in the United States at 
less than fair value (LTFV) (61 FR 18377, April 25, 1996). On May 16, 
1996, the United States International Trade Commission (ITC) notified 
the Department of its affirmative preliminary injury determination.
    On October 10, 1996, the Department and Mexican tomato growers/
exporters initialed a proposed agreement suspending the antidumping 
investigation. On October 28, 1996, the Department preliminarily 
determined that imports of fresh tomatoes from Mexico are being sold at 
LTFV in the United States. 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) (Preliminary 
Determination). On the same day the Preliminary Determination was 
signed, the Department and certain growers/exporters of fresh tomatoes 
from Mexico signed an agreement to suspend the investigation (1996 
Suspension Agreement). See Suspension of Antidumping Investigation: 
Fresh Tomatoes from Mexico, 61 FR 56618 (November 1, 1996).
    On May 31, 2002, Mexican tomato growers/exporters accounting for a 
significant percentage of all fresh tomatoes imported into the United 
States from Mexico provided written notice to the Department of their 
withdrawal from the 1996 Suspension Agreement, effective July 30, 2002. 
Because the 1996 Suspension Agreement would no longer cover 
substantially all imports of fresh tomatoes from Mexico, effective July 
30, 2002, the Department terminated the

[[Page 4832]]

1996 Suspension Agreement, terminated the sunset review of the 
suspended investigation, and resumed the antidumping investigation. See 
Notice of Termination of Suspension Agreement, Termination of Sunset 
Review, and Resumption of Antidumping Investigation: Fresh Tomatoes 
from Mexico, 67 FR 50858 (August 6, 2002).
    On November 8, 2002, the Department and Mexican tomato growers/
exporters initialed a proposed agreement suspending the resumed 
antidumping investigation on imports of fresh tomatoes from Mexico. On 
December 4, 2002, the Department and certain growers/exporters of fresh 
tomatoes from Mexico signed a new suspension agreement (``2002 
Suspension Agreement''). See Suspension of Antidumping Investigation: 
Fresh Tomatoes From Mexico, 67 FR 77044 (December 16, 2002). On 
November 3, 2003, the Department published the Final Results of 
Analysis of Reference Prices and Clarifications and Corrections; 
Agreement Suspending the Antidumping Duty Investigation on Fresh 
Tomatoes From Mexico, 68 FR 62281 (November 3, 2003).
    On November 26, 2007, Mexican tomato growers/exporters accounting 
for a significant percentage of all fresh tomatoes imported into the 
United States from Mexico provided written notice to the Department of 
their withdrawal from the 2002 Suspension Agreement, effective 90 days 
from the date of their withdrawal letter (i.e., February 24, 2008), or 
earlier, at the Department's discretion.
    On November 28, 2007, the Department and Mexican tomato growers/
exporters initialed a new proposed agreement to suspend the antidumping 
investigation on imports of fresh tomatoes from Mexico. On December 3, 
2007, the Department released the initialed agreement to interested 
parties and afforded them an opportunity to comment on the initialed 
agreement. On December 17 and 18, 2007, several interested parties 
filed comments in support of the initialed agreement.
    Because the 2002 Suspension Agreement would no longer cover 
substantially all imports of fresh tomatoes from Mexico, the Department 
published a notice of intent to terminate the 2002 Suspension 
Agreement, intent to terminate the five-year sunset review of the 
suspended investigation, and intent to resume the antidumping 
investigation. 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). On January 16, 2008, the Department 
published a notice of termination of the 2002 Suspension Agreement, 
termination of the five-year sunset review of the suspended 
investigation, and resumption of the antidumping investigation, 
effective January 18, 2008. 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).
    On January 22, 2008, the Department signed a new suspension 
agreement (2008 Suspension Agreement) with certain growers/exporters of 
fresh tomatoes from Mexico. The 2008 Suspension Agreement is attached 
to this notice of Suspension of Antidumping Investigation.

Scope of the Agreement

    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. 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 subheadings of the Harmonized Tariff 
Schedules of the United States (HTSUS), according to the season of 
importation: 0702 and 9906.07.01 through 9906.07.09. Although the HTSUS 
numbers are provided for convenience and customs purposes, the written 
description of the scope of this Agreement is dispositive.

Suspension of Investigation

    The Department consulted with the parties to the proceeding and has 
considered the comments submitted 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. See the memorandum titled ``Existence of Extraordinary 
Circumstances'' from Ronald K. Lorentzen, Acting Deputy Assistant 
Secretary for Policy and Negotiations, to David M. Spooner, Assistant 
Secretary for Import Administration.
    The 2008 Suspension Agreement provides 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 constructed export price) will not exceed 
15 percent of the weighted-average amount by which the estimated normal 
value exceeded the export price (or constructed export price) for all 
LTFV entries of the producer/exporter examined during the course of the 
investigation. We have determined that the 2008 Suspension 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.
    We have also determined that the 2008 Suspension Agreement is in 
the public interest and can be monitored effectively, as required under 
section 734(d) of the Act. See the memorandum titled ``Public Interest 
Assessment of the Agreement Suspending the Antidumping Duty 
Investigation on Fresh Tomatoes from Mexico'' from Ronald K. Lorentzen, 
Acting Deputy Assistant Secretary for Policy and Negotiations, to David 
M. Spooner, Assistant Secretary for Import Administration.
    For the reasons outlined above, we find that the 2008 Suspension 
Agreement meets the criteria of section 734(c) of the Act.

International Trade Commission

    In accordance with section 734(f) of the Act, the Department has 
notified the ITC of the 2008 Suspension Agreement.

Suspension of Liquidation

    The suspension of liquidation ordered in the preliminary 
affirmative determination in this case published on November 1, 1996, 
and resumed on January 18, 2008 (see 73 FR 2887), shall continue to be 
in effect, subject to section 734(h)(3) of the Act. Section 
734(f)(2)(B) of the Act provides that the Department may adjust the 
security required to reflect the effect of the 2008

[[Page 4833]]

Suspension Agreement. The Department has found that the 2008 Suspension 
Agreement eliminates completely the injurious effects of imports and, 
thus, the Department is adjusting the security required from 
signatories to zero. The security rates in effect for imports from non-
signatory growers remain as published in the Preliminary Determination.
    Notwithstanding the 2008 Suspension Agreement, the Department 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 Orders (APOs) the Department granted 
in the original investigation segment of this proceeding remain in 
place. While the investigation is suspended, parties subject to those 
APOs may retain, but may not use, information received under those 
APOs. All parties wishing access to business proprietary information 
submitted during the administration of the 2008 Suspension Agreement 
must submit new APO applications. An APO for the administration of the 
2008 Suspension Agreement will be placed on the record within five days 
of the date of publication of this notice in the Federal Register.
    We are publishing this notice in accordance with section 734 of the 
Act and 19 CFR 353.18.

    Dated: January 22, 2008.
David M. Spooner,
Assistant Secretary for Import Administration.

    Attachment.

Suspension of Antidumping Investigation: Fresh Tomatoes From Mexico

    Pursuant to section 734(c) of the Tariff Act of 1930, as amended 
(19 U.S.C. 1673c(c)) (``the Act''), and section 353.18 of the U.S. 
Department of Commerce (``the Department'') regulations (19 CFR 353.18 
(1996)), the Department and the signatory producers/exporters of fresh 
tomatoes from Mexico enter into this Suspension Agreement (the 
``Agreement''). On the basis of this Agreement, the Department shall 
suspend its antidumping duty investigation, the initiation of which was 
published on April 25, 1996 (61 FR 18377), with respect to fresh 
tomatoes from Mexico, subject to the terms and provisions set out 
below.

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 the 
Department 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 subheadings of the Harmonized Tariff 
Schedules of the United States (HTSUS), according to the season of 
importation: 0702 and 9906.07.01 through 9906.07.09. Although the HTSUS 
numbers are provided for convenience and customs purposes, the written 
description of the scope of this Agreement is dispositive.

II. U.S. Import Coverage

    The signatories are the producers and exporters in Mexico which 
account for substantially all of the subject merchandise imported into 
the United States. The Department 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.

III. Basis for the Agreement

    Each signatory individually agrees that, in order to prevent price 
suppression or undercutting, it will not sell, on and after the 
effective date of the Agreement, merchandise subject to the Agreement 
at prices that are less than the reference price, in accordance with 
Appendix A to this Agreement.
    In order to satisfy the requirements of section 734(c)(1)(B) of the 
Act, each signatory agrees individually 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 calculation methodologies 
described in Appendix B of this Agreement.

IV. Monitoring of the Agreement

A. Import Monitoring

    1. The Department will monitor entries of fresh tomatoes from 
Mexico to ensure compliance with section III of this Agreement.
    2. The Department will review publicly available data and other 
official import data, including, as appropriate, records maintained by 
U.S. Customs and Border Protection, to determine whether there have 
been imports that are inconsistent with the provisions of this 
Agreement.

B. Compliance Monitoring

    1. The Department may require, and each signatory agrees to 
provide, confirmation, through documentation provided to the 
Department, that the price received on any sale subject to this 
Agreement was not less than the established reference price. The 
Department may require that such documentation be provided, and be 
subject to verification, within thirty days of the sale.
    2. The Department 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, 
either directly or indirectly to unrelated purchasers in the United 
States, including each adjustment applicable to each sale, as specified 
by the Department.
    Each signatory agrees to permit review and on-site inspection of 
all information deemed necessary by the Department to verify the 
reported information.
    3. The Department may conduct administrative reviews under section 
751 of the Act, upon request or upon its own initiative, to ensure that 
exports of fresh tomatoes from Mexico are at prices consistent with the 
terms of this Agreement. The Department may perform verifications 
pursuant to administrative reviews conducted under section 751 of the 
Act.
    4. At any time, and without prior notice, the Department may 
conduct verifications of parties handling signatory merchandise to 
determine

[[Page 4834]]

whether they are selling signatory merchandise in accordance with the 
terms of this Agreement.

C. Shipping and Other Arrangements

    1. All reference prices will be expressed in U.S.$/lb. in 
accordance with Appendix A of this Agreement. Subject to paragraph 24 
of Annex 703.2 of the North American Free Trade Agreement, the quality 
of each entry of fresh tomatoes exported to the United States from 
Mexico will conform with any applicable U.S. Department of Agriculture 
minimum grade, size, and/or quality import requirements in effect.
    2. Signatories agree not to circumvent the Agreement and to 
undertake measures that will help to prevent circumvention. For 
example, each signatory will take the following actions:
    a. It is the responsibility of all signatories to ensure that sales 
of their merchandise are made consistent with the requirements of this 
Agreement. To that end, each signatory shall enter into a contract, 
with the party that is responsible for the first sale of its subject 
merchandise to an unaffiliated customer in the United States (the 
Selling Agent),\1\ that incorporates the terms of this Agreement. 
Through a contractual arrangement signatories shall also require the 
Selling Agent establish a contract with third parties to ensure that 
adjustments for spoilage or other claims inconsistent with the 
Agreement will not be permitted. Further, this contractual arrangement 
must establish that the Selling Agent maintain documentation 
demonstrating that sales of their merchandise are made consistent with 
the requirements of this Agreement.
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    \1\ The Selling Agent can be an importer, agent, broker, 
distributor, or any other entity that facilitates the transaction 
between the signatory and the first unaffiliated U.S. customer.
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    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 2008 Suspension Agreement.'' \2\ 
Alternatively, if the signatory that exports the tomatoes is different 
from the entity that grew the tomatoes, it will label the boxes with 
its name and its signatory identification number.
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    \2\ Signatories may continue to use boxes with markings from the 
2002 Suspension Agreement through December 31, 2008.
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    c. Each signatory will label its boxes of fresh tomatoes sold in 
Mexico with its name and the title ``Prohibida Su Exportacion''.
    3. Not later than thirty days after each quarter, each signatory 
will submit a written statement to the Department certifying that all 
sales during the most recently completed quarter were at net prices 
(after rebates, backbilling, discounts for quality and other claims) at 
or above the reference price and 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, discounts/free 
goods/financing package, swap, or other exchange). Each signatory 
agrees to permit full verification of its certification as the 
Department deems necessary.

D. Rejection of Submissions

    The Department 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 353.31; (3) submissions that do 
not comply with the procedures for establishing business proprietary 
treatment under 19 CFR 353.32, 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, the Department 
may use the facts otherwise available for the basis of its decision, as 
it determines appropriate, unless the Department determines that 
section V. applies.

E. Compliance Consultations

    1. When the Department identifies, through import or compliance 
monitoring or otherwise, that sales may have been made at prices 
inconsistent with section III of this Agreement, the Department will 
notify each signatory which it believes is responsible or, if 
applicable, notify the signatory's representative. The Department will 
consult with each such party for a period of up to sixty days to 
establish a factual basis regarding sales that may be inconsistent with 
section III of this Agreement.
    2. During the consultation period, the Department will examine any 
information that it develops or which is submitted, including 
information requested by the Department under sections IV.A. and B. 
above.

F. Review

    If the Department is not satisfied at the conclusion of the 
consultation period that sales by such signatory are being made in 
compliance with this Agreement, the Department may conduct a review to 
determine whether this Agreement is being violated by such signatory. 
This provision does not limit or restrict the Department's authority to 
conduct an administrative review under section 751 of the Act and 
paragraph IV.B.3. of this Agreement.

G. Operations Consultations

    The Department will consult with the signatory producers/exporters 
regarding the operations of this Agreement. A party to the Agreement 
may request such consultations in any April or September (i.e., prior 
to the beginning of each season) following the first year of the 
signing of this Agreement. Consistent with the statutory requirement 
that the Agreement prevent the suppression or undercutting of price 
levels of domestic fresh tomatoes, the Department may revise the 
reference price following consultations under this provision.
    In order to evaluate whether this Agreement fulfills the 
requirements of section 734(c)(1)(B) of the Act, the Department may 
conduct an administrative review under section 751 of the Act, upon 
request or upon its own initiative, to ensure that for each entry of 
each exporter the amount by which the estimated normal value exceeds 
the export price (or the constructed export price) did 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 
calculation methodologies described in Appendix B. An affirmative 
determination under section 751 of the Act may result in the 
termination of this Agreement.

V. Violations of the Agreement

    A. If the Department determines that the Agreement is being or has 
been violated or no longer meets the requirements of sections 734(c) or 
(d) of the Act, the Department shall take action it determines 
appropriate under section 734(i) of the Act and the Department's 
regulations.
    B. Pursuant to section 734(i) of the Act the Department will refer 
any intentional violations of the Agreement to U.S. Customs and Border 
Protection. Any person who intentionally violates 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

[[Page 4835]]

merchandise. For purposes of the Agreement, the domestic value of the 
merchandise will be deemed to be 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, the Department will examine the activities of 
signatories, their 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 V.B. above.
    Signatories of this Agreement consent to the release of all 
information presented to or obtained by the Department during the 
conduct of verifications with U.S. Customs and Border Protection and/or 
the U.S. Department of Agriculture. Further, through a contractual 
arrangement, signatories shall require that the Selling Agent consent 
to the release of all information presented to or obtained by the 
Department during the conduct of verifications with U.S. Customs and 
Border Protection and/or the U.S. Department of Agriculture.
    D. The following activities shall be considered violations of the 
Agreement:
    1. Sales that are at net prices (after rebates, backbilling, 
discounts for quality and other claims) that are below the reference 
price.
    2. 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, discounts/free goods financing package, swap, or other 
exchange).
    3. Sales that are not in accordance with the terms and conditions 
applied by the Department when calculating prices for transactions 
involving adjustments due to changes in condition after shipment as 
detailed in Appendix D of this Agreement.
    4. Selling signatory tomatoes to Canada in a manner that is not 
consistent with the requirements of Appendix E of this Agreement.
    5. 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.
    6. Any other act or practice that the Department or U.S. Customs 
and Border Protection finds in violation of the Agreement.

VI. 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 or 
have been sold at less than fair value. The signatories also do not 
admit that greenhouse, cherry, or any other particular type of tomatoes 
are properly considered within the scope of the underlying 
investigation.
    B. The signatories may withdraw from this Agreement upon ninety 
days written notice to the Department.
    C. Upon request, the Department will advise any signatory of the 
Department's methodology for calculating its export price (or 
constructed export price) and normal value, which, for purposes of this 
Agreement, are described in Appendix B of this Agreement. Further, the 
Department reserves the right to modify its methodology in calculating 
export price (or constructed export price) and normal value.

VII. Disclosure and Comment

    A. If the Department proposes to revise the reference price as a 
result of consultations under this Agreement, not later than three 
months prior to the first day of each semi-annual period, the 
Department will disclose the results and the methodology of the 
Department's calculation of the preliminary reference price established 
for that upcoming semi-annual period.
    B. Not later than seven days after the date of disclosure under 
paragraph VII.A., the parties to the proceeding may submit written 
comments to the Department, not to exceed fifteen pages. After 
reviewing these submissions, the Department will provide the final 
reference price for the upcoming semi-annual period, normally within 
thirty days after the date of disclosure under paragraph VII.A.
    C. The Department may make available to representatives of each 
interested party to the proceeding, under appropriately drawn 
administrative protective orders, any business proprietary information 
submitted to the Department pursuant to section IV. of this Agreement, 
as well as the results of the Department's analysis of that 
information.

VIII. Termination

    Termination of the suspended investigation will be considered in 
accordance with the five-year review provisions of section 351.218 of 
the Department's regulations.

IX. Effective Date

    The effective date of the Agreement is January 22, 2008.

David M. Spooner,

Assistant Secretary for Import Administration.

Dated: January 22, 2008.

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

Ing. Manuel Esteban Tarriba Urtuzuastegui, President.
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(Name and Title of Certifying Official)
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(Signature of Certifying Official)

For CAADES, Sinaloa, A.C.

Dated: January 10th 2008.

Victor Rodr[iacute]guez Hern[aacute]ndez, President
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(Name and Title of Certifying Official)
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(Signature of Certifying Official)

For Consejo Agricola de Baja California, A.C.

Dated: January 14th 2008.

Cesar Campana Acosta, President
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(Name and Title of Certifying Official)
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(Signature of Certifying Official)

For Asociacion Mexicana de Horticultura Protegida, A.C.

Dated: January 10th of 2008.

Gaspar Zaragoza Yberri, President
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(Name and Title of Certifying Official)
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(Signature of Certifying Official)

For Union Agricola Regional de Sonora, Productores de Hortalizas 
Frutas y Legumbres

Dated: January 11 of 2008.

Basilio Gatzionis Torres, President
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(Name and Title of Certifying Official)
(Signature of Certifying Official)-------------------------------------

For Confederacion Nacional de Productores de Hortalizas

Dated: January 9, 2008.

Appendix A--Suspension of Antidumping Investigation--Fresh Tomatoes 
From Mexico--Reference Price

    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 Department and 
signatory producer/exporters of subject merchandise hereby agree to 
adopt the reference prices calculated based on the methodology 
outlined in the November 1, 1996, agreement suspending the 
antidumping investigation involving fresh tomatoes from Mexico, as 
amended on August 14, 1998. See Suspension of Antidumping 
Investigation; Fresh Tomatoes from Mexico, 61 FR 56618,

[[Page 4836]]

56620 (November 1, 1996), October 28, 1996, Memorandum to Robert S. 
LaRussa titled ``The Prevention of Price Suppression or Undercutting 
of Price Levels in the Suspension Agreement Covering Fresh Tomatoes 
from Mexico,'' Amendment to the Suspension Agreement on Fresh 
Tomatoes from Mexico, 63 FR 43674 (August 14, 1998), and Final 
Results of Analysis of Reference Prices and Clarifications and 
Corrections; Agreement Suspending the Antidumping Duty Investigation 
on Fresh Tomatoes from Mexico, 68 FR 62281 (November 3, 2003). 
Accordingly, the reference price for the July 1 through October 22 
period will be $0.172 per pound and the reference price for the 
October 23 through June 30 period will be $0.2169 per pound.
    These reference prices will remain in effect unless modified in 
accordance with the provisions of paragraph IV.G. of the Agreement.
    The term ``reference price'' refers to the price F.O.B. from the 
Selling Agent. The reference price includes all palletizing and 
cooling charges incurred prior to shipment from the Selling Agent. 
The actual movement or handling expenses beyond the point of entry 
into the United States (e.g., McAllen, Nogales, Otay Mesa) must be 
added to the reference price and must reflect the cost for an arm's-
length transaction. The chart below contains examples of certain 
minimum common trucking charges the USDA observed during the 2007 
winter season.

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                       F.O.B. Nogales to:                           Los Angeles      New York         Chicago
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Rate ($US)/Per Truckload........................................            $900          $5,000          $3,200
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    Parties should refer to http://www.ams.usda.gov/fv/mncs/
fvwires.htm to obtain examples of common trucking charges pertinent 
to the current season. Where the Selling Agent sells through an 
affiliated party, the transfer price from the Selling Agent to the 
affiliate must be at or above the reference price and any subsequent 
sale to an unaffiliated party must include the actual cost of 
markups (e.g., trucking charges) that reflect arm's-length costs. 
For guidance on the trucking-charge markup for such resales, parties 
should also refer to http://www.ams.usda.gov/fv/mncs/fvwires.htm to 
obtain common trucking charges pertinent to the current season.
    During the Department's verifications of parties handling 
signatory merchandise it will ascertain whether (1) the handling 
expenses beyond the point of entry into the United States are added 
to the reference price and reflect the actual cost for an arm's-
length transaction and (2) the transfer price from Selling Agents to 
their affiliates are at or above the reference price and any 
subsequent sale to an unaffiliated party includes markups (e.g., 
trucking charges) that reflect arm's-length costs.
    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.

Appendix B--Suspension of Antidumping Investigation--Fresh Tomatoes 
From Mexico--Analysis of Prices at Less Than Fair Value

A. Normal Value

    The cost or price information reported to the Department that 
will form the basis of the normal value (NV) calculations for 
purposes of the Agreement must be comprehensive in nature 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 the Department 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). The calculation of normal value based on a sales price in the 
comparison market will vary depending on whether the comparison is 
price-to-EP or price-to-CEP.

2. Constructed Value

    When normal value is based on constructed value, the Department 
will compute constructed values (CVs) for each growing season 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. The 
Department 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.

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
    = Export Price (EP)
Calculation of CEP:
    Gross Unit Price
    - Movement Expenses
    - Discounts and Rebates
    - 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
    = Constructed Export Price (CEP)

C. Fair Comparisons

    To ensure that a fair comparison with normal value is made, the 
Department will make adjustments to the price to the first 
unaffiliated customer in calculating the EP or CEP. For both EP and 
CEP the Department will add packing costs, if not already included 
in the price, rebated import duties, and, if applicable, certain 
countervailing duties. For both EP and CEP, the Department will 
deduct transportation costs and export taxes or duties. In 
calculating CEP, the Department will make additional deductions for 
commissions, direct selling expenses incurred in selling the 
merchandise under investigation in the United States, the cost of 
any further manufacture or assembly performed in the United States, 
and a portion of profit. In addition, the Department will deduct 
indirect selling expenses that relate to commercial activity in the 
United States.

Appendix C--Suspension of Antidumping Investigation--Fresh Tomatoes 
From Mexico--Box Weights

    The Department has the sole authority to make revisions to the 
Box Weight Chart used to apply the reference price to particular box 
configurations. The reference price for each type of box shall be 
determined based on the average weights stated in the chart below. 
The Department will coordinate with U.S. Customs and Border 
Protection in its collection and review of data for calculating and 
monitoring box-specific average weights. To derive representative 
average weights for each box type in the chart below, the Department 
will weigh twenty sample boxes, randomly chosen without notice, from 
three different shippers (i.e., an average weight of sixty boxes for 
each box type in the chart).
    If the Department determines to revise an average weight figure 
based upon information that an average weight on the chart is no 
longer accurate, the Department will provide at least fifteen days 
notice to signatories (either directly or through their 
representative in this proceeding) prior to the effective date of 
such revised average weights for purposes of this Agreement. The 
Department will determine the revised average weight in accordance 
with the procedure described above. Once the Department determines 
the revised average weight, the weight will become effective at the 
beginning of the next growing season

[[Page 4837]]

(which will be either July 1 or October 23 of a year).
    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 the 
Department in writing no later than forty-five days prior to the 
date of the first exportation of such boxes to the United States. 
Signatories can obtain from the Department's Web site a copy of the 
suggested form for submitting this information. See ``Notification 
of Intent to Ship Tomatoes in a Specialty Pack'' at http: //
ia.ita.doc.gov/tomato/2008-agreement/documents/suggested--forms/. 
This information must be submitted to the Department in accordance 
with the filing instructions set forth under 19 CFR 353.31 and 
353.32. The Department 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 the Department 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.

                                Box-Weight Chart.--Suspension of Antidumping Investigation on Fresh Tomatoes From Mexico
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                              July 1-       October 23-
                                                                                             Avg. Kg.        Avg. Lb.       October 22        June 30
              Box type *                        Layers                     Size               weight         weight **       $0.172/lb      $0.2169/lb
                                                                                                                             Reference       Reference
-------------------------------------------------------------------------------------------------------------------------------price-----------price----
Tomato (cherry)......................  ........................  12 Baskets.............            6.32           13.93            2.40            3.02
Tomato (cherry)......................  Bulk....................  Bulk...................            8.13           17.92            3.08            3.89
Tomato...............................  2L......................  4 x 4..................           10.78           23.77            4.09            5.16
Tomato...............................  2L......................  4 x 5..................           10.81           23.83            4.10            5.17
Tomato...............................  2L......................  5 x 5..................           10.43           22.99            3.96            4.99
Tomato...............................  2L......................  5 x 6..................            9.71           21.41            3.68            4.64
Tomato...............................  3L......................  6 x 6..................           13.33           29.39            5.05            6.37
Tomato...............................  3L......................  6 x 7..................           12.92           28.48            4.90            6.18
Tomato...............................  Bulk....................  25 lbs.***.............           12.15           26.79            4.61            5.81
Tomato...............................  1L......................  Long Box...............            7.41           16.34            2.81            3.54
Tomato (Green).......................  Bulk....................  Small--20 lb...........            8.16           17.99            3.09            3.90
Tomato Grape.........................  Bulk....................  20 lb..................            9.42           20.77            3.57            4.51
Tomato Grape.........................  Clam Shell..............  12 Baskets--12 oz......            4.71           10.38            1.79            2.25
Tomato Cluster.......................  1L......................  11 lb. Flat............            5.58           12.31            2.12           2.67
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Applicable regardless of production method (e.g., field grown or greenhouse grown).
** Conversion factor from kg. to lb. based on 1 kg. = 2.20462 lbs.
*** Also applicable to 4/7 bushel cartons.

Appendix D--Suspension of Antidumping Investigation--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, such that the sales 
price for any tomatoes accepted in a lot \1\ do not fall below the 
reference price. The procedures outlined in this appendix only apply 
if the adjustment reduces the net sales price below the reference 
price.
---------------------------------------------------------------------------

    \1\ For these purposes, a lot is defined as a grouping of 
tomatoes in a particular shipment that is distinguishable by packing 
type.
---------------------------------------------------------------------------

    As explained in Appendix A of the Agreement, the term 
``reference price'' refers to the price F.O.B. from the Selling 
Agent. The reference price includes all palletizing and cooling 
charges incurred prior to shipment from the Selling Agent. The 
actual movement or handling expenses beyond the point of entry into 
the United States (e.g., McAllen, Nogales, Otay Mesa) must be added 
to the reference price and must reflect the cost for an arm's-length 
transaction. The chart below contains examples of certain minimum 
common trucking charges the USDA observed during the 2007 winter 
season.

----------------------------------------------------------------------------------------------------------------
                       F.O.B. Nogales to:                           Los Angeles      New York         Chicago
----------------------------------------------------------------------------------------------------------------
Rate ($US)/Per Truckload........................................            $900          $5,000          $3,200
----------------------------------------------------------------------------------------------------------------

    Parties should refer to http://www.ams.usda.gov/fv/mncs/
fvwires.htm to obtain examples of common trucking charges pertinent 
to the current season. Where the Selling Agent sells through an 
affiliated party, the transfer price from the Selling Agent to the 
affiliate must be at or above the reference price and any subsequent 
sale to an unaffiliated party must include the actual cost of 
markups (e.g., trucking charges) that reflect arm's-length costs. 
For guidance on the trucking-charge markup for such resales, parties 
should also refer to http://www.ams.usda.gov/fv/mncs/fvwires.htm to 
obtain common trucking charges pertinent to the current season.
    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 the U.S. Department of 
Agriculture under the Perishable Agricultural Commodities Act.
    To facilitate the verification of claims for changes in 
condition after shipment, the contract between the signatory and the 
Selling Agent must establish that claims be resolved and all paper 
work be completed within fifteen business days after the USDA 
inspection unless the claim is referred to PACA for mediation. When 
filing quarterly certifications with the Department, signatories 
should report the number of lots on which claims for condition 
defects were granted, the total volume of tomatoes destroyed or 
donated, and the total value of claims granted. Signatories can 
obtain from the Department's Web site a copy of the suggested form 
for submitting the quarterly certification information. See 
``Quarterly Certification'' at http://ia.ita.doc.gov/tomato/2008-
agreement/documents/suggested--forms/.

A. Contractual Terms for Rejecting All or Part of a Lot

    1. A USDA inspection certificate must be provided to support 
claims for rejection of all or part of a lot. Further, no 
adjustments will

[[Page 4838]]

be made for failure to meet suitable shipping conditions unless 
supported by an unrestricted USDA inspection.
    2. If the USDA inspection indicates that the lot has: (1) Over 
8% soft/decay condition defects; (2) over 15% of any one condition 
defect; or (3) greater than 20% total 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 condition defect 
is any defect listed in the chart in part A.5. below. When a lot of 
tomatoes has condition defects in excess of those outlined above as 
documented on a USDA inspection certificate, the documented 
percentage of the tomatoes with 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 condition thresholds outlined above.
    4. The USDA inspection must be called for no more than six 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, it will supercede the first 
inspection, as long as the appeal inspection is requested within a 
reasonable amount of time from the first inspection.
    The first receiver of the product, regardless of whether that 
receiver is acting as an agent or a broker for an unrelated 
purchaser or whether the receiver is the unrelated purchaser 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 six-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 
F.O.B. transaction and upon delivery of the product to the first 
buyer's warehouse in a delivered sale.
    A person or company shall be considered an agent or broker for 
an unrelated purchaser: (1) When that person or company falls within 
the description of types of broker operations set forth in 7 CFR 
46.27; or (2) have 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 
the tomatoes, the customer and not the broker may request an 
inspection, and only the customer is entitled to any resulting 
adjustments. The inspection would take place at the customer'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 six 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 only for condition defects. The 
term ``condition defect'' is intended to have the same definition 
recognized by the Fresh Produce Branch of the United States 
Department of Agriculture, with the exception of abnormal coloring, 
and, therefore, covers the following items:

                            Condition Defects
(1) Sunken & Discolored Areas
(2) Sunburn
(3) Internal Discoloration
(4) Freezing Injury
(5) Chilling Injury
(6) Gray Mold Rot
(7) Bacterial Soft Rot
(8) Soft/Decay**
(9) Bruising
(10) Nailhead Spot
(11) Skin Checks
(12) Decayed and Moldy Stems
(13) Waxy Blister
(14) White Core
(15) Discolored or Dried-out Jelly Around Seeds
------------------------------------------------------------------------
** The most common decays listed by the USDA are pleospora rot, phoma
  rot, alternaria rot, and blossom end rot.

    6. In calculating the transaction price for lots subject to an 
adjustment claim for 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 Loads

    If the lot contains condition defects greater than those 
outlined above and the receiver does not reject the entire lot of 
tomatoes, the Department will factor certain adjustments into the 
transaction price, provided that the following conditions apply:
    1. The price invoiced to and paid by the receiver for the 
accepted tomatoes must not fall below the reference price.
    2. The Selling Agent may reimburse the receiver for actual 
destruction costs associated with the DEFECTIVE tomatoes. If 
properly documented, these expenses will not be considered in the 
calculation of the price of the accepted tomatoes.
    3. The Selling Agent may reimburse the receiver for the portion 
of freight expenses allocated to the DEFECTIVE tomatoes. If properly 
documented, these expenses will not be considered in the calculation 
of the price of the accepted tomatoes.
    4. If the Selling Agent follows the guidelines outlined below, 
it may reimburse the receiver for repacking charges directly 
associated with salvaging and reconditioning the lot. If properly 
documented, these expenses will not be considered in the calculation 
of the price of the accepted tomatoes.
    a. If the salvaging and reconditioning activity is performed by 
a party unaffiliated with the Selling Agent's customer the fee 
charged for the service may be reimbursed if the Selling Agent's 
customer can provide evidence for such costs (i.e., specifically, 
proof-of-payment documentation for the invoice from the repacker).
    b. If the salvaging and reconditioning activity is performed by 
the Selling Agent's customer or a party affiliated with the Selling 
Agent, the direct labor costs or, in lieu thereof, one-half of the 
ordinary and customary repacking charges may be reimbursed. To 
substantiate such costs the Selling Agent's customer or party 
affiliated with the Selling Agent must provide detailed records of 
the labor cost incurred for repacking or, where applicable, evidence 
of the ordinary and customary repacking costs.
    5. The Selling Agent may reimburse the receiver for the 
inspection fees listed on the USDA inspection certificate. If 
properly documented, these expenses will not be considered in the 
calculation of the price of the accepted tomatoes.
    6. Any reimbursements from, by, or on behalf of the Selling 
Agent that are not specifically mentioned in items B.2., B.3., B.4., 
or B.5. above, or that are not properly documented, will be factored 
into the calculation of the price for the accepted tomatoes.
    7. The receiver may not resell the DEFECTIVE tomatoes. The 
receiver may choose to have the DEFECTIVE tomatoes destroyed, 
donated to non-profit food banks, or returned to the Selling Agent. 
The DEFECTIVE tomatoes may not be sold.\2\
---------------------------------------------------------------------------

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

    8. In addition, for each transaction involving adjustments due 
to changes in condition after shipment the Selling Agent 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

[[Page 4839]]

and documentation supporting the expenses.
--Description of the destruction or donation process and 
documentation from the landfill or food bank.
--Proof-of-payment documentation for any destruction costs.
--A statement that ``No monies or other compensation was received 
for the destroyed or donated tomatoes.''
--Signature of a responsible official at the receiver.

C. Contractual Terms for Rejection of Full Loads

    In cases where the receiver has rejected the full lot of 
tomatoes based on condition defects, the Selling Agent may choose to 
have the entire lot destroyed, donated to non-profit food banks, or 
returned. If the entire lot is destroyed or donated, the Selling 
Agent will require the receiver to provide the documentation noted 
above for partial-lot rejections. Further, the Selling Agent may 
reimburse the receiver for ordinary and customary expenses that the 
receiver incurred with respect to the lot, including those expenses 
associated with the destruction or donation process, as long as the 
Selling Agent obtains the support documentation specified above 
under B.8. The Department will treat such transactions as ``non-
sales'' provided that adequate support documentation is available.
    Alternatively, the Selling Agent may sell the entire rejected 
lot to another receiver. 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 F.O.B. port of entry to 
the final receiver. If the final receiver finds that the lot 
contains condition defects greater than those outlined above, it 
shall follow the directions stated above with respect to rejection 
of partial loads.

D. Contractual Terms for Partial vs. Unrestricted Lot Inspections

    As explained in part A.1. above, the Department will only allow 
adjustments to the transaction price for condition defects if the 
USDA inspection is unrestricted. During the time between the call 
for inspection and the arrival of the USDA inspector, the receiver 
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, the 
Department will consider this an unrestricted partial-lot 
inspection. Alternatively, if the USDA inspector is not allowed full 
access to the partial lot, the Department will deem it a restricted 
inspection. No adjustments will be made for failure to meet suitable 
shipping conditions 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 receiver 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 receiver 
sells 140 boxes of 5x5s from a lot identified as 160 5x5s on the 
invoice. When the USDA inspector arrives the receiver 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 receiver already sold will not 
be eligible for an adjustment based on the USDA inspection.

Appendix E--Suspension of Antidumping Investigation--Fresh Tomatoes 
From Mexico--Contractual Arrangement for Documenting Sales of Signatory 
Merchandise to Canada

    Based on our experience in this proceeding, it is common 
practice for the signatory's Selling Agent to enter the merchandise 
into the United States for consumption and then re-export it to 
Canada. The purpose of this appendix is to: (1) Outline the process 
that each signatory of this Agreement must follow to ensure that the 
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 requires that the 
Selling Agent that facilitates the sale to Canada maintain the 
following information in its files:
    1. Signatory name and identification 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, the Department will consider the transaction a U.S. sale.
    We also require signatories to 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 and that any movement or handling expenses beyond the 
point of export from Mexico must be added to the reference price and 
must reflect the actual cost for an arm's-length transaction. 
Signatories can obtain from the Department's Web site 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 2008 
Suspension Agreement'' at http://ia.ita.doc.gov/tomato/2008-
agreement/documents/suggested--forms/. Further, through contractual 
arrangement each signatory must require that the Selling Agent 
maintain 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--Suspension of Antidumping Investigation--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 section 980.501(a)(2) and 
980.212(I), should be used for all tomatoes for processing that are 
covered by the Florida Marketing Order; tomatoes for processing that 
are not covered by the Florida Marketing Order (e.g., romas, grape 
tomatoes, greenhouse tomatoes and any tomatoes that are entered 
during the part of the year that the Florida Marketing Order is not 
in effect) must be accompanied by the ``2008 Suspension Agreement--
Tomatoes for Processing Exemption Form''. The exempt commodity form 
must be presented to U.S. Customs and Border Patrol at the time of 
crossing at the port of entry into the United States and both the 
Selling Agent 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 the Department's Web site an example 
of the ``2008 Suspension Agreement--Tomatoes for Processing 
Exemption Form''. See http://ia.ita.doc.gov/tomato/2008-agreement/
documents/suggested--forms/. 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.

Appendix G--Suspension of Antidumping Investigation--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 the Department of 
Agriculture under the Perishable Agricultural Commodities Act 
(PACA).
    The former Chief of the Department of Agriculture's PACA branch, 
James R. Frazier, has confirmed that this Agreement is

[[Page 4840]]

enforceable under PACA regulations and PACA's claim settlement 
process. According to Mr. Frazier, in settling a claim, PACA 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 that the sale is 
subject to the terms of the Agreement and identifies those terms, 
PACA will recognize the identified terms of the Agreement as 
integral to the sales contract. In particular, signatories should 
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 six hours from 
the time of arrival at the receiver and performed in a timely 
fashion thereafter.
     The USDA inspection must find that the condition 
defects exceed the thresholds outlined in Appendix D above.
     Any price adjustments will be limited to the actual 
percentage of condition defects as documented by a USDA inspection 
certificate.
     The price adjustments will be limited to actual 
destruction costs, the allocated freight expense, and salvaging and 
reconditioning expenses calculated in accordance with Appendix D 
above.
     The customer may not resell any defective tomatoes. 
Instead, they must be destroyed, returned or donated to a non-profit 
food bank. 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 PACA 
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, 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.
     The signatory should instruct its sales personnel to 
inform customers making purchases by telephone or at the loading 
dock that the sale is subject to the terms of the Agreement and its 
restrictions on price adjustments and, by purchasing from them, the 
buyer agrees to those terms. In fact, the sales personnel should 
provide a copy of the letter to the customer and, ideally, have the 
customer acknowledge receipt of the letter, in writing, prior to 
making the sale. Such an established practice will help to ensure 
that even new customers are informed properly of the terms of sale 
prior to completing a contract.
    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.

 [FR Doc. E8-1442 Filed 1-25-08; 8:45 am]

BILLING CODE 3510-DS-P