[Federal Register Volume 84, Number 92 (Monday, May 13, 2019)]
[Notices]
[Pages 20858-20861]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-09786]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-201-820]
Fresh Tomatoes From Mexico: Termination of Suspension Agreement,
Rescission of Administrative Review, and Continuation of the
Antidumping Duty Investigation
AGENCY: Enforcement and Compliance, International Trade Administration,
Department of Commerce.
DATES: Applicable May 13, 2019.
SUMMARY: On February 6, 2019, the Department of Commerce (Commerce)
gave 90 days' notice of intent to withdraw from the 2013 Suspension
Agreement on Fresh Tomatoes from Mexico (2013 Agreement), terminate the
2013 Agreement, and continue the antidumping duty (AD) investigation
initiated in 1996. Because a new suspension agreement has not been
signed, Commerce is withdrawing from and terminating the suspension
agreement, rescinding the administrative review of the 2013
[[Page 20859]]
Agreement, and continuing the antidumping duty (AD) investigation.
FOR FURTHER INFORMATION CONTACT: Sally C. Gannon or Rebecca Lee,
Enforcement and Compliance, International Trade Administration, U.S.
Department of Commerce, 1401 Constitution Avenue NW, Washington, DC
20230; telephone: (202) 482-0162 or (202) 482-6188, respectively.
SUPPLEMENTARY INFORMATION:
Background
On April 18, 1996, Commerce initiated an AD 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).\1\ On May 16, 1996, the United States International Trade
Commission (ITC) notified Commerce of its affirmative preliminary
injury determination.
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\1\ See Initiation of Antidumping Duty Investigation: Fresh
Tomatoes from Mexico, 61 FR 18377 (April 25, 1996).
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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\
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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).
\3\ See Suspension of Antidumping Investigation: Fresh Tomatoes
from Mexico, 61 FR 56618 (November 1, 1996).
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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\
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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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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\
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\5\ See Suspension of Antidumping Investigation: Fresh Tomatoes
from Mexico, 67 FR 77044 (December 16, 2002).
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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\
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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).
\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).
\8\ See Suspension of Antidumping Investigation: Fresh Tomatoes
from Mexico, 73 FR 4831 (January 28, 2008).
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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 new suspension agreement
(2013 Agreement).\12\
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\9\ Section IV.G. of the 2008 Agreement states that Commerce
will consult with signatory producers/exporters regarding the
operations of the 2008 Agreement. A party 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 the 2008
Agreement.
\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).
\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).
\12\ See Fresh Tomatoes from Mexico: Suspension of Antidumping
Investigation, 78 FR 14967 (March 8, 2013).
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On January 9, 2018, Commerce issued a letter that formally opened
consultations with the Mexican tomato growers/exporters to negotiate
possible revisions to the 2013 Agreement.\13\ Since that time, Commerce
has continued to negotiate with representatives of the Mexican growers/
exporters and, in parallel, has continually consulted with
representatives of the domestic industry.
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\13\ 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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On February 1, 2018, Commerce initiated a five-year sunset review
of the suspended investigation.\14\ On March 29, 2018, the Florida
Tomato Exchange (FTE), a member of the U.S. petitioning industry, filed
a request that Commerce conduct an administrative review on
[[Page 20860]]
growers/exporters of fresh tomatoes from Mexico covered by the 2013
Agreement. On May 2, 2018, Commerce initiated the administrative review
of the 2013 Agreement.\15\ On August 27, 2018, Commerce published in
the Federal Register the preliminary results of the five-year sunset
review of the suspended investigation.\16\
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\14\ See Initiation of Five-Year (Sunset) Reviews, 83 FR 4641
(February 1, 2018).
\15\ See Initiation of Antidumping and Countervailing Duty
Administrative Reviews (Initiation of Administrative Review), 83 FR
19215 (May 2, 2018).
\16\ 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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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.\17\ Section VI.B of the 2013
Agreement states 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.\18\ On
November 26, 2018 and November 28, 2018, respectively,
Confederaci[oacute]n de Asociaciones Agr[iacute]colas del Estado de
Sinaloa, A.C., Consejo Agr[iacute]cola de Baja California, A.C.,
Asociaci[oacute]n Mexicana de Horticultura Protegida, A.C.,
Asociaci[oacute]n de Productores de Hortalizas del Yaqui y Mayo, and
Sistema Producto Tomate (collectively, CAADES et al. or the Mexican
growers) submitted responses to FTE's previous request for Commerce to
terminate the 2013 Agreement.19 20 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 Mexican
growers.\21\ 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.\22\
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\17\ See Letter to Wilbur Ross, Secretary of Commerce, from the
FTE, ``Fresh Tomatoes from Mexico: Request to Terminate Antidumping
Suspension Agreement,'' dated November 14, 2018.
\18\ 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.
\19\ See Letter to Wilbur Ross, Secretary of Commerce, from
CAADES et al., ``2013 Suspension Agreement on Fresh Tomatoes from
Mexico,'' dated November 26, 2018.
\20\ See Letter to Wilbur Ross, Secretary of Commerce, from
CAADES et al., ``2013 Suspension Agreement on Fresh Tomatoes from
Mexico,'' dated November 28, 2018.
\21\ See Letter to Wilbur Ross, Secretary of Commerce, from NS
Brands, Ltd., ``2013 Suspension Agreement on Fresh Tomatoes from
Mexico: NS Brands' Response to Petitions Request to Terminate 2013
Suspension Agreement,'' dated December 18, 2018.
\22\ 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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On February 6, 2019, in accordance with Section VI.B of the 2013
Agreement, Commerce notified Mexican signatories that Commerce intends
to withdraw from the 2013 Agreement.\23\ Since the notification, as
noted above, Commerce has held consultations with representatives of
the Mexican growers/exporters and the domestic industry to discuss a
possible new suspension agreement.
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\23\ 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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Scope of the Investigation
The merchandise subject to the investigation is all fresh or
chilled tomatoes (fresh tomatoes) which have Mexico as their origin,
except for those tomatoes which are for processing. For purposes of
this suspended investigation, processing is defined to include
preserving by any commercial process, such as canning, dehydrating,
drying, or the addition of chemical substances, or converting the
tomato product into juices, sauces, or purees. Fresh tomatoes that are
imported for cutting up, not further processing (e.g., tomatoes used in
the preparation of fresh salsa or salad bars), are covered by the
investigation.
Commercially grown tomatoes, both for the fresh market and for
processing, are classified as Lycopersicon esculentum. Important
commercial varieties of fresh tomatoes include common round, cherry,
grape, plum, greenhouse, and pear tomatoes, all of which are covered by
this investigation.
Tomatoes imported from Mexico covered by this investigation are
classified under the following subheading of the Harmonized Tariff
Schedule of the United States (HTSUS), according to the season of
importation: 0702. Although the HTSUS numbers are provided for
convenience and customs purposes, the written description of the scope
of this investigation is dispositive.
Termination of Suspension Agreement and Continuation of the AD
Investigation
In accordance with Section VI.B of the 2013 Agreement, Commerce is
withdrawing from the 2013 Agreement, effective May 7, 2019, which is 90
days after our February 6, 2019 notice to the signatories. Accordingly,
Commerce is terminating the 2013 Agreement, effective May 7, 2019, and
continuing the underlying AD investigation. The statute does not
identify the timing for completion of the investigation in this
particular scenario. Therefore, we are looking to section 734(i)(1)(B)
of the Tariff Act of 1930, as amended (the Act), for guidance.
Consistent with section 734(i)(1)(B) of the Act, Commerce will continue
the investigation as if it had published the affirmative preliminary
determination under section 733(b) of the Act on the effective date of
the termination, May 7, 2019. As explained in its 1996 Preliminary
Determination, Commerce previously postponed the final determination
until the 135th day after the date of the preliminary
determination.\24\ Commerce, therefore, intends to issue its final
determination in the investigation 135 days after the effective date of
withdrawal from and termination of the 2013 Agreement, i.e., by
September 19, 2019, unless a new suspension agreement becomes effective
prior to or on this date. If Commerce and producers/exporters
accounting for substantially all imports of fresh tomatoes from Mexico
sign a new suspension agreement, following the notice and comment
period provided in accordance with section 734(c) of the Act, the
continued investigation will be suspended.
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\24\ See 1996 Preliminary Determination at 56609.
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Rescission of the Administrative Review
On May 2, 2018, Commerce initiated an administrative review of the
2013 Agreement for the period March 1, 2017 through February 28,
2018.\25\ Because Commerce has terminated the 2013 Agreement, there is
no longer an agreement of which to conduct an administrative review.
Therefore, Commerce is rescinding the administrative review of the 2013
Agreement, effective on the date of termination of the 2013 Agreement,
i.e., May 7, 2019.
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\25\ See Initiation of Administrative Review, 83 FR at 19217.
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Period of Investigation
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 are terminating a suspension agreement and
continuing an investigation that covers a period of investigation that
dates back more than 23 years,
[[Page 20861]]
Commerce will be requesting information corresponding to the most
recent four full quarters, i.e., April 1, 2018 through March 31, 2019.
Respondent Selection
In light of the unusual procedural posture of this proceeding,
Commerce finds it appropriate to reconsider respondent selection.
Commerce intends to evaluate U.S. Customs and Border Protection (CBP)
data for U.S. imports of fresh tomatoes from Mexico for the most recent
four quarters under the appropriate Harmonized Tariff Schedule of the
United States (HTSUS) numbers listed in the ``Scope of the
Investigation'' section above and select mandatory respondents in
accordance with section 777A(c) of the Act.
We are releasing CBP data under Administrative Protective Order
(APO) to all parties with access to information protected by APO
concurrently with the issuance of this notice.
Interested parties wishing to comment on the CBP data must do so
within two business days of the publication date of this notice.
Comments must be filed electronically using Commerce's electronic
records system, ACCESS at http://access.trade.gov in accordance with 19
CFR 351.303.\26\ An electronically filed document must be received
successfully in its entirety by ACCESS no later than 5:00 p.m. Eastern
Time, two business days after the publication date of this notice.
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\26\ See Antidumping and Countervailing Duty Proceedings:
Electronic Filing Procedures; Administrative Protective Order
Procedures, 76 FR 39263 (July 6, 2011).
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Suspension of Liquidation
Commerce will instruct U.S. Customs and Border Protection (CBP) to
suspend liquidation of entries of fresh tomatoes from Mexico that are
entered, or withdrawn from warehouse, for consumption on or after May
7, 2019, the effective date of the termination of the 2013 Suspension
Agreement. CBP shall require antidumping duty cash deposits or bonds
for entries of the subject merchandise based on the preliminary dumping
margins, which are as follows:
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Weighted-
average
Grower/exporter percentage
margin
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San Vincente Camalu......................................... 4.16
Exportadora Agricola Sacramento S.A. de C.V.\27\............ 11.89
Arturo Lomeli Villalobas S.A. de C.V........................ 26.97
Eco-Cultivos S.A. de C.V.................................... 188.45
Productora Agricola Industrial del Noroeste, S.A. de 10.26
C.V.\28\...................................................
Administradora Horticola del Tamazula....................... 28.30
Agricola Yory, S. de P.R. de R.I............................ 11.95
All Others.................................................. 17.56
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International Trade Commission
Commerce will notify the International Trade Commission (ITC) of
its withdrawal from and termination of the 2013 Suspension Agreement
and continuation of the AD investigation. If Commerce makes a final
affirmative determination, the ITC is scheduled to make its final
determination concerning injury within 45 days after publication of
Commerce's final determination. If both Commerce's and the ITC's final
determinations are affirmative, Commerce will issue an AD order.
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\27\ Exportadora Agricola Sacramento S.A. de C.V. (Sacramento)
is formerly known as Ernesto Fernando Echavarria Salazar Grupo
Solidario. See Commerce's verification agenda to Sacramento dated
October 11, 2002, and the Sacramento verification report dated
November 12, 2002, at Home Market Exhibit 1.
\28\ Productora Agricola Industrial del Noroeste, S.A. de C.V.
(Noroeste) was formerly known as Ranchos Los Pinos S. de R.L. de
C.V. See Noroeste's entry of appearance dated October 18, 2002, the
Noroeste cost verification report dated November 12, 2002, at 3, and
the Noroeste sales verification report dated November 13, 2002, at
1, 4.
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Filing Requirements
All submissions to Commerce must be filed electronically using
Enforcement and Compliance's Antidumping Duty and Countervailing Duty
Centralized Electronic Service System (ACCESS).\29\ An electronically
filed document must be received successfully in its entirety by the
time and date it is due. Documents exempted from the electronic
submission requirements must be filed manually (i.e., in paper form)
with Enforcement and Compliance's APO/Dockets Unit, Room 18022, U.S.
Department of Commerce, 1401 Constitution Avenue NW, Washington, DC
20230, and stamped with the date and time of receipt by the applicable
deadlines.
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\29\ See Antidumping and Countervailing Duty Proceedings:
Electronic Filing Procedures; Administrative Protective Order
Procedures, 76 FR 39263 (July 6, 2011); see also Enforcement and
Compliance; Change of Electronic Filing System Name, 79 FR 69046
(November 20, 2014) for details of Commerce's electronic filing
requirements, effective August 5, 2011. Information on help using
ACCESS can be found at https://access.trade.gov/help.aspx and a
handbook can be found at https://access.trade.gov/help/Handbook%20on%20Electronic%20Filling%20Procedures.pdf.
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Certification Requirements
Any party submitting factual information in an AD or CVD proceeding
must certify to the accuracy and completeness of that information.\30\
Parties must use the certification formats provided in 19 CFR
351.303(g).\31\ Commerce intends to reject factual submissions if the
submitting party does not comply with the applicable revised
certification requirements.
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\30\ See section 782(b) of the Act.
\31\ See also Certification of Factual Information to Import
Administration During Antidumping and Countervailing Duty
Proceedings, 78 FR 42678 (July 17, 2013) (Final Rule). Answers to
frequently asked questions regarding the Final Rule are available at
http://enforcement.trade.gov/tlei/notices/factual_info_final_rule_FAQ_07172013.pdf.
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Administrative Protective Order Access and Letters of Appearance
Commerce will issue new administrative protective orders (APO) for
the continued investigation that will supersede the previously issued
firm-specific APOs. Those authorized applicants that were granted APOs
during the original investigation, as indicated in the most recent APO
service list on Commerce's website, will continue to have access to
business proprietary information under APO. Any new APO applications or
necessary amendments for changes in staff under the pre-existing APOs
should be submitted promptly, and in accordance with the procedures
outlined in Commerce's regulations at 19 CFR 351.305. These
applications must be filed electronically using ACCESS at http://access.trade.gov. Those procedures apply to this continued
investigation. Parties wishing to participate in this continued
investigation should ensure that they meet the requirements of these
procedures, e.g., the filing of separate letters of appearance as
discussed at 19 CFR 351.103(d).
This determination is issued and published in accordance with
section 733(f) and 777(i)(1) of the Act.
Dated: May 7, 2019.
Jeffrey I. Kessler,
Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2019-09786 Filed 5-10-19; 8:45 am]
BILLING CODE 3510-DS-P