[Federal Register Volume 62, Number 26 (Friday, February 7, 1997)]
[Notices]
[Page 5800]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-3102]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
[A-201-802]
Gray Portland Cement and Clinker From Mexico; Amended Final
Results of Antidumping Duty Administrative Review in Accordance With
Court Decision
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Notice of amended final results of antidumping duty
administrative review in accordance with court decision.
-----------------------------------------------------------------------
SUMMARY: On August 1, 1996, the Court of Appeals for the Federal
Circuit (the Federal Circuit) affirmed the July 12, 1995 decision of
the Court of International Trade (CIT) in The Ad Hoc Committee of AZ-
NM-TX-FL Producers of Gray Portland Cement v. United States, Slip Op.
95-125 (CIT 1995) (Ad Hoc). In its July 12, 1995 opinion, the CIT
affirmed the Department of Commerce's (the Department's) results of
redetermination pursuant to remand, and prior remand determinations of
the Department, of the final results of the first administrative review
of the antidumping duty order on gray portland cement and clinker from
Mexico. The Federal Circuit's ruling represents a ``final and
conclusive'' court decision ``not in harmony'' with the Department's
original determination. As a result of these remand redeterminations,
the Department found a dumping margin for respondent Cemex, S.A. de
C.V. (Cemex) for the period April 12, 1990 through July 31, 1991 of
61.42 percent.
EFFECTIVE DATE: February 7, 1997.
FOR FURTHER INFORMATION CONTACT: Robert James or John Kugelman, Office
Eight, Antidumping and Countervailing Duty Enforcement Group III,
International Trade Administration, U.S. Department of Commerce, 14th
Street and Constitution Avenue N.W., Washington, DC 20230; telephone:
(202) 482-5222.
SUPPLEMENTARY INFORMATION:
Background
On April 28, 1993, the Department published in the Federal Register
the final results of its first administrative review of the antidumping
duty order on gray portland cement and clinker from Mexico (58 FR 25803
(April 28, 1993)). In those final results the Department set forth its
determination of the weighted-average margins for the two respondent
companies for the period April 12, 1990 through July 31, 1991.
Petitioners and Cemex subsequently filed separate complaints with the
CIT challenging the final results; these complaints were later
consolidated. Thereafter, the CIT published an Order and Opinion dated
September 26, 1994 in Ad Hoc Committee v. United States, Ct. No. 93-05-
00273, Slip Op. 94-151, remanding the Department's final results with
instructions to (1) consider CEMEX's claimed deductions for pre-sale
home market transportation costs under the circumstances-of-sale (COS)
provision of the Department's regulations, (2) apply a value-added-tax
(VAT) adjustment consistent with the methodology established in
Torrington Co. v. United States, 853 F. Supp. 446 (CIT 1994), (3)
reclassify certain transactions designated as exporter's sales price
transactions and reconsider the selection of best information available
(BIA) for certain other sales, and (4) reconsider the selection of BIA
data for missing added material costs. On January 5, 1995, the
Department filed its remand results with the CIT. Cemex challenged
certain aspects of the Department's remand results, including our
treatment of VAT.
On May 15, 1995, the CIT ordered a second remand which affirmed the
Department's treatment of Cemex's pre-sale transportation expenses and
its application of the so-called Torrington methodology for calculating
VAT. The CIT, however, directed the Department to consider different
VAT rates. Ad Hoc Committee v. United States, Slip Op. 95-91 (CIT May
15, 1995). The Department filed its redetermination with the Court on
June 13, 1995. The CIT, on July 12, 1995, affirmed the Department's
remand results and issued a judgment that Cemex's January 25, 1995
challenge on the issue of VAT methodology was untimely filed and,
therefore, moot.
Cemex appealed from the CIT's July 12, 1995 decision in Ad Hoc
affirming the Department's redetermination. This appeal challenged the
CIT's ruling that Cemex had waived its right in this case to challenge
Commerce's application of the Torrington methodology for calculating
VAT, and that Cemex's pre-sale transportation expenses were not
deductible in the calculation of foreign market value. Consistent with
the Federal Circuit's decision in Timken Company v. United States, 893
F.2d 337 (Fed. Cir. 1990), on October 12, 1995, the Department
published a ``Notice of Court Decision'' in the Federal Register which
suspended liquidation of the subject merchandise entered, or withdrawn
from warehouse, for consumption until there was a ``final and
conclusive'' decision in this case (60 FR 53163).
On August 1, 1996, the Federal Circuit issued its decision
affirming the earlier rulings of the CIT (Appeal No. 95-1485, Fed. Cir.
August 1, 1996). On October 17, 1996, the Federal Circuit issued its
mandate. The Federal Circuit's ruling constitutes a ``final and
conclusive'' decision in this case which is ``not in harmony'' with the
Department's original determination. Accordingly, we have prepared
these amended final results and will proceed to issue liquidation
instructions to the Customs Service.
Amended Final Results of Review
In its April 29, 1993 Final Results of Administrative Review, the
Department calculated a weighted-average margin for Cemex for the
period April 12, 1990 through July 31, 1991 of 30.74 percent. As a
result of the Department's redeterminations on court remand, we have
determined the weighted-average dumping margin for Cemex for the period
April 12, 1990 through July 31, 1991 to be 61.42 percent. The
Department will instruct the Customs Service to assess antidumping
duties on all appropriate entries, and will issue appraisement
instructions accordingly. This notice is published in accordance with
section 751(a)(1) of the Tariff Act (19 U.S.C. 1675(a)(1)) and 19 CFR
353.22(c)(8).
Dated: January 31, 1997.
Robert S. LaRussa,
Acting Assistant Secretary for Import Administration.
[FR Doc. 97-3102 Filed 2-6-97; 8:45 am]
BILLING CODE 3510-DS-P
