United States Withdraws From Tomato Suspension Agreement

On May 7, 2019, the U.S. Department of Commerce (the “USDOC”) announced the termination of the 2013 Suspension Agreement on Fresh Tomatoes from Mexico after the USDOC and the signatories from Mexico failed to reach an agreement on revisions to the 2013 Suspension Agreement on Fresh Tomatoes from Mexico.

The USDOC will resume its anti-dumping investigation on fresh tomatoes from Mexico, which it initiated on April 18, 1996 after the U.S. tomato industry filed a petition, but has been suspended through various suspension agreements and amendments with signatories from Mexico representing substantially all exporters of fresh tomatoes from Mexico. If the USDOC issues a final determination that sales of fresh tomatoes from Mexico are being sold for less than fair market value in the United States, the U.S. International Trade Commission will complete its own investigation and make a final determination of its own. If both the USDOC and the U.S. International Trade Commission make affirmative findings of dumping and injury, the U.S. Department of Commerce will instruct U.S. Customs and Border Protection to assess duties against imports of fresh tomatoes from Mexico into the United States. 

The USDOC continues to negotiate with signatories in Mexico in order to reach a revised agreement regarding fresh tomatoes from Mexico. However, the USDOC has indicated that that during negotiations, it will instruct Customs and Border Protection to collect cash deposits or bonds at a rate of 17.56% based on its preliminary determination of dumping margins published on November 1, 1996.

The importer of record is required to pay the estimated anti-dumping duty upon importation and is responsible for actual anti-dumping duties calculated after administrative review by the USDOC. Additionally, upon importation, the importer of record is required to complete a Reimbursement Certificate with U.S. Customs and Border Protection in which it certifies whether it has been reimbursed for anti-dumping duties by the manufacturer, producer, seller or exporter. If the importer of record is reimbursed for anti-dumping duties, the USDOC will deduct the amount of the reimbursed duties from the U.S. price (i.e. the export price), resulting in an increase in the margin used to calculate actual anti-dumping duties due from the importer of record. Additionally, U.S. Customs and Border Protection will assess a duty equal to the amount reimbursed to the importer of record. U.S. importers of record for fresh tomatoes from Mexico should plan for the possibility of the increased cost of doing business if anti-dumping duties are imposed on fresh tomatoes from Mexico.

If an agreement between the USDOC and the Mexican signatories is reached or if the U.S. International Trade Commission determines there is no injury based on its own independent investigation, the USDOC has indicated that any deposits collected will be refunded.