04-5544. Gray Portland Cement and Clinker From Mexico; Notice of NAFTA Binational Panel's Final Decision and Amended Final Results of Antidumping Duty Administrative Review

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

ACTION:

Notice of NAFTA Binational Panel's final decision and amended final results of antidumping duty administrative review.

SUMMARY:

On January 22, 2004, the Binational Panel issued its final decision with respect to the final results of administrative review of the antidumping duty order on gray portland cement and clinker from Mexico covering the period August 1, 1996, through July 31, 1997. As there is now a final and conclusive decision in this case, we are amending the final results of review and we will instruct U.S. Customs and Border Protection to liquidate entries subject to this review.

EFFECTIVE DATE:

March 11, 2004.

FOR FURTHER INFORMATION CONTACT:

Brian Ellman or Mark Ross, Office of AD/CVD Enforcement 3, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: [phone] or [phone], respectively.

SUPPLEMENTARY INFORMATION:

Background

On March 17, 1999, the Department of Commerce (the Department) published in the Federal Register the final results of the administrative review of the antidumping duty order on gray portland cement and clinker from Mexico (64 FR 13148) (Seventh Review Final Results). The Department collapsed CEMEX, S.A. de C.V. (CEMEX), and GCC Cemento, S.A. de C.V. (GCCC),^[1] in the determination.

CEMEX, GCCC, and the Southern Tier Cement Committee (the petitioner) contested various aspects of the Department's Seventh Review Final Results. On May 30, 2002, the Article 1904 Binational Panel (the Panel) issued an order in Gray Portland Cement and Clinker from Mexico; Final Results of the Seventh Antidumping Administrative Review, Secretariat File No. USA-MEX-99-1904-03 (May 30, 2002) (First Remand Order), remanding to the Department the Seventh Review Final Results.

In the First Remand Order, the Panel instructed the Department to do the following: (1) Explain why its findings regarding the difference in freight costs, the relative profit levels, the number and type of customers, and the disparity in handling charges support the Department's determination that sales of Type V cement sold as Type I cement were outside the ordinary course of trade, (2) explain the basis of its decision to assess duties on merchandise destined for consumption outside the region, with particular reference to the requirements of the U.S. Constitution, (3) reconsider its decision that sales by CEMEX of bag and bulk cement should be classified as the same like product and that sales of CEMEX's bag and bulk cement were made at the same level of trade, (4) reconsider its decision to treat U.S. warehousing expenses of CEMEX and CDC as indirect selling expenses, (5) make the appropriate adjustment to normal value for CEMEX's home-market pre-sale warehousing expenses, (6) reconsider its decision to treat CDC's sales to unaffiliated U.S. customers as indirect export-price (EP) sales instead of constructed-export-price (CEP) sales in light of the decision of the Court of Appeals for the Federal Circuit (CAFC) in AK Steel Corp. v. United States, 226 F.3d 1361 (2000), (7) correct errors it made in its calculation of the difference-in-merchandise (DIFMER) adjustment and explain its DIFMER decision further, and (8) explain its decision further to allow CEMEX an adjustment for home-market freight expenses. The Department responded to the First Remand Order in its remand redetermination in Gray Portland Cement and Clinker from Mexico; Final Results of the Seventh Antidumping Administrative Review; Final Results of Redetermination Pursuant to NAFTA Panel, September 27, 2002 (First Remand).

On April 11, 2003, the Panel issued an order in Gray Portland Cement and Clinker from Mexico; Final Results of the Seventh Antidumping Administrative Review, Secretariat File No. USA-MEX-99-1904-03 (April 11, 2003) (Second Remand Order), remanding to the Department its remand redetermination in the First Remand. In the Second Remand Order, the Panel instructed the Department to determine whether the U.S. sales by CDC should be compared to the home-market sales of Type V cement sold as Type I cement by CEMEX. The Department responded to the Second Remand Order in its remand redetermination in Gray Portland Cement and Clinker from Mexico; Final Results of the Seventh Antidumping Administrative Review; Final Results of Redetermination Pursuant to NAFTA Panel, May 27, 2003 (Second Remand).

On September 4, 2003, the Panel issued an order in Gray Portland Cement and Clinker from Mexico; Final Results of the Seventh Antidumping Administrative Review, Secretariat File No. USA-MEX-99-1904-03 (September 4, 2003) (Third Remand Order), remanding to the Department its remand redetermination in the Second Remand. In the Third Remand Order, the Panel instructed the Department not to use the adverse facts available it had applied in determining the margins on U.S. sales by CEMEX when calculating the importer-specific assessment rate for CDC. The Department responded to the Third Remand Order in its remand redetermination in Gray Portland Cement and Clinker from Mexico; Final Results of the Seventh Antidumping Administrative Review, Secretariat File No. USA-MEX-99-1904-03 (September 15, 2003) (Third Remand).

On November 25, 2003, the Panel issued an order in Gray Portland Cement and Clinker from Mexico; Final Results of the Seventh Antidumping Administrative Review, Secretariat File No. USA-MEX-99-1904-03 (November 25, 2003) (Fourth Remand Order), remanding to the Department its remand redetermination in the Third Remand. In the Fourth Remand Order, the Panel instructed the Department to calculate separate importer-specific assessment rates for CDC and CEMEX and not to apply adverse facts available with respect to the calculation of normal value for CDC. The Department responded to the Fourth Remand Order in its remand redetermination in Gray Portland Cement and Clinker from Mexico; Final Results of the Seventh Antidumping Administrative Review, Secretariat File No. USA-MEX-99-1904-03 (December 16, 2003) (Fourth Remand).

On January 22, 2004, the Panel issued an order affirming the Department's Fourth Remand, and on February 2, 2004, the NAFTA Secretariat issued a notice of final panel action. See Gray Portland Cement and Clinker from Mexico; Final Results of the Seventh Antidumping Administrative Review, Secretariat File No. USA-MEX-99-1904-03 (January 22, 2004, and February 2, 2004, respectively).

Amendment to Final Results

Pursuant to section 516A(g) of the Tariff Act of 1930, as amended (the Act), we are now amending the final results of the administrative review of the antidumping duty order on gray portland cement and clinker from Mexico for the period August 1, 1996, through July 31, 1997. Based on the final results of redetermination on remand, the weighted-average antidumping margin for CEMEX and GCCC changes from 49.58 percent, calculated in the Seventh Review Final Results, to 37.34 percent.

The Department will determine and U.S. Customs and Border Protection will assess appropriate antidumping duties on entries of the subject merchandise exported by firms covered by this review. We will issue appropriate assessment instructions directly to CBP within 15 days of publication of these amended final results of review.

We are issuing and publishing this determination and notice in accordance with section 516A(g) of the Act.

Dated: March 5, 2004.

James J. Jochum,

Assistant Secretary for Import Administration.

Footnotes

1.  Cementos de Chihuahua, S.A. de C.V. (CDC), was GCCC's formal name during this segment of the proceeding.