[Federal Register Volume 60, Number 97 (Friday, May 19, 1995)]
[Notices]
[Pages 26865-26871]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-12395]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-201-802]
Gray Portland Cement and Clinker From Mexico; Final Results Of
Antidumping Duty Administrative Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Notice of final results of antidumping duty administrative
review.
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SUMMARY: The review period is August 1, 1992, through July 31, 1993.
This review covers one manufacturer/exporter, CEMEX, S.A. (CEMEX). On
June 3, 1994, the Department of Commerce (the Department) published the
preliminary results of its administrative review of the antidumping
duty order on gray portland cement and clinker from Mexico. We gave
interested parties an opportunity to comment.
For our final results, we have determined that CEMEX failed to
cooperate with the Department. As a result, we have assigned CEMEX a
margin based upon best information available (BIA), in accordance with
section 776(c) of the Tariff Act of 1930, as amended (the Act). When a
company refuses to cooperate with the Department or otherwise
significantly impedes the proceedings, we use as BIA the higher of (a)
the highest of the rates found for any firm for the same class or kind
of merchandise in the same country of origin in the less-than-fair-
value (LTFV) investigation or prior administrative review, or (b) the
highest rate found in this review for any firm for the same class or
kind of merchandise in the same country of origin. For purposes of the
instant review, this margin is the highest rate found for any firm in
the LTFV investigation, i.e., CEMEX's margin, as amended pursuant to
litigation (61.85 percent). The ``All Others'' rate for this order is
61.35 percent.
EFFECTIVE DATE: May 19, 1995.
FOR FURTHER INFORMATION CONTACT: Robert James or John Kugelman, Office
of Antidumping Compliance, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-
5253.
SUPPLEMENTARY INFORMATION:
Background
On June 3, 1994, the Department published in the Federal Register
(59 FR 28844) the preliminary results of its administrative review of
the antidumping duty order on gray portland cement and clinker from
Mexico (55 FR 35371, August 30, 1990). The Department has now completed
this review in accordance with section 751 of the Act.
Scope of Review
The products covered by this review include gray portland cement
and clinker. Gray portland cement is a hydraulic cement and the primary
component of concrete. Clinker, an intermediate material product
produced when manufacturing cement, has no use other than being ground
into finished cement. Gray portland cement is currently classifiable
under the Harmonized Tariff Schedule (HTS) item number 2523.29, and
cement clinker is currently classifiable under HTS item number 2523.10.
Gray portland cement has also been entered under HTS item number
2523.90 as ``other hydraulic cements.'' The HTS subheadings are
provided for convenience and U.S. Customs Service purposes only. Our
written description of the scope remains dispositive. [[Page 26866]]
Analysis of Comments Received
We invited interested parties to comment on the preliminary
results. We received written comments from the Ad Hoc Committee of AZ-
NM-TX-FL Producers of Gray Portland Cement and the National Cement
Company of California (petitioners) and CEMEX on July 5, 1994. We
received written rebuttal comments from petitioners and CEMEX on July
11, 1994. On July 18, 1994, we held a public hearing.
Comment 1: CEMEX insists that the Department, in accordance with a
July 1992 panel report from the Antidumping Code Committee of the
General Agreement on Tariffs and Trade (1947 GATT), must revoke the
antidumping duty order ab initio, due to what CEMEX contends was the
Department's failure to properly establish petitioners' standing in the
original LTFV investigation. CEMEX argues that the U.S. statute is
silent on the degree of support required to warrant initiation of a
LTFV investigation. In cases where the U.S. statute does not
specifically address an issue, CEMEX argues, the law must be
interpreted in a manner which will not conflict with U.S. obligations
under international agreements. According to CEMEX, the Department
failed to affirmatively ascertain that the petition, filed on behalf of
a regional industry, was supported by ``all or almost all'' of that
regional industry. As a result, CEMEX argues, initiation of the LTFV
investigation was improper and, thus, the investigation and all
subsequent proceedings following from the investigation are void and
must be rescinded. Only then, CEMEX maintains, will the actions of the
administering authority in the United States (i.e., the Department) be
brought into compliance with the findings of the GATT panel report.
Petitioners argue that U.S. courts have established that the
provisions of the GATT Antidumping Code cannot be interpreted to
supersede domestic law. Citing the Court of Appeals for the Federal
Circuit (Federal Circuit) decision in Suramerica de Aleaciones
Laminadas, C.A. v. United States, 966 F.2d 660 (Fed. Cir. 1992)
(Suramerica), petitioners assert that U.S. law takes precedence over
the conclusions of a GATT panel report. The Federal Circuit further
held, petitioners maintain, that it is the duty of Congress, and not
the courts, to reconcile any conflicts between U.S. law and the GATT
Antidumping Code. Petitioners note that, in Suramerica, the dispute
also centered on the Department's manner of addressing standing in a
LTFV investigation. The Federal Circuit, petitioners maintain,
``summarily rejected'' the respondents' request to revoke the order.
Further, petitioners argue, the Fifth Circuit Court, in Mississippi
Poultry Association, Inc. v. Madigan, 992 F.2d 1359 (5th Cir. 1993),
specifically concluded that the Department's interpretation of standing
takes precedence, even if such interpretation ``is virtually certain to
create a violation of the GATT.''
Finally, petitioners aver that the GATT panel report is not binding
upon the United States, as the panel's conclusions have not been
adopted by the GATT Antidumping Code Committee. Petitioners claim that
until such time as this report is adopted, the panel report creates no
legally binding obligation upon the United States under international
agreements.
Department's Position: We agree with petitioners that unadopted
GATT panel reports create no obligation upon the United States. In the
present case, the Government of the United States has not agreed to the
adoption of the GATT panel report regarding Mexican cement and clinker
on both legal and procedural grounds, and the Antidumping Code
Committee has not, in fact, adopted this report. In the investigations
of pure and alloy magnesium from Canada and Norway, respondents also
cited an unadopted GATT panel report on seamless stainless steel hollow
products from Sweden. This panel report faulted the Department's
interpretation of the expression ``on behalf of an industry,'' which is
found at section 732(b) of the Act. See Pure and Alloy Magnesium from
Canada: Final Affirmative Determination, 57 FR 30940 (July 13, 1992),
and Pure and Alloy Magnesium from Norway: Final Negative Determination,
57 FR 30944 (July 13, 1992). In those cases, the Department rejected
any applicability of the unadopted GATT panel report.
We also agree with petitioners that U.S. law, which the Department
followed when initiating the LTFV investigation, takes precedence over
the GATT Antidumping Code. This position has been supported by the
Federal Circuit which concluded that ``the GATT does not trump domestic
legislation; if the statutory provisions at issue here are inconsistent
with the GATT, it is a matter for Congress and not this court to
remedy.'' Suramerica, 966 F.2d at 667-668. Rather, as the CIT stated in
Timken Company v. United States, 14 CIT 753 (CIT 1990), ``any guidance
the ITA gleans from the [GATT] Code is clearly hortatory and not
mandatory.''
Furthermore, the Department has no authority to rescind its
initiation of the LTFV investigation. Under sections 514(b) and
516A(c)(1) of the Act, a LTFV determination regarding initiation
becomes final and binding unless a court challenge to that
determination is timely initiated under 516A. Even if judicial review
of a determination is timely sought, the Department's determination
continues to control until there is a resulting court decision ``not in
harmony with that determination.'' See 19 U.S.C. 1516a(c)(1). In this
case, no one challenged the Department's determination on standing
before the CIT. Therefore, that determination is final and binding on
all persons, including the Department.
With respect to the statute's purported ``silence,'' we note that
the 1947 GATT, as well as the Agreement on Implementation of Article VI
of the GATT (the AD Code), is silent as to the degree of support
required for a petition filed in a regional industry case. Likewise, in
considering the proper interpretation of the requirement that a
petition be filed ``by or on behalf of'' an industry, the AD Code
provides no express guidance as to how compliance with this criterion
is to be ascertained. Thus, even if the Act is silent on these issues,
our interpretation of the statute could not conflict with the AD Code.
We also reject any suggestion that our practice of presuming the
support of the domestic industry, absent an affirmative showing to the
contrary, conflicts with U.S. law. In fact, numerous decisions by the
U.S. Court of International Trade (CIT) have upheld the Department's
practice. See, e.g., Citrosuco Paulista v. United States, 704 F. Supp.
1074 (CIT 1988); Comeau Seafoods v. United States, 724 F. Supp. 1407
(CIT 1989).
For these reasons, we have concluded that (i) the GATT panel report
does not govern the Department's conduct of this administrative review,
and (ii) our determination in this regard is in accordance with law.
Comment 2: CEMEX argues that the Department erred in applying BIA
in this review, as the data on sales of Types II and V cement, as well
as data on constructed value for Types II and V cement submitted by
CEMEX, were sufficient for the Department to accurately calculate
margins in the instant review. CEMEX claims that the Department's
conclusion in its preliminary results that data on sales of Type I
cement were ``essential'' to determining if home market sales of Types
II and V cement were within the ordinary course of trade (see below)
was without foundation and, therefore, did not warrant use of total
BIA. CEMEX [[Page 26867]] contends that the Department's sole basis for
applying BIA was CEMEX's refusal to supply the Type I information, and
not because the Department had insufficient information to determine
whether CEMEX's Type II and Type V sales were made in the ordinary
course of trade. CEMEX further maintains that, ``absent a legally
sufficient excuse for resorting to comparisons of similar
merchandise,'' the Department is required to use sales of identical
merchandise as a basis for foreign market value (FMV). In this case,
CEMEX argues, use of BIA would only be appropriate if the Department
had reviewed the information in the record and found that the sales of
identical merchandise were outside the ordinary course of trade. Since,
according to CEMEX, it had provided adequate information to support its
claim that its sales of identical merchandise were within the ordinary
course of trade, the Department should have used those sales. Instead,
CEMEX claims, the Department simply disregarded all information on
sales of identical merchandise provided by CEMEX and resorted to BIA.
CEMEX insists that its sales of Type II and Type V cement were made
in the ordinary course of trade and, thus, are the appropriate sales
for comparison purposes. Further, CEMEX maintains that no evidence on
the record of the instant review rebuts this contention. CEMEX argues
that it provided sufficient data regarding each of the five criteria
cited by the Department in support of its conclusion in the second
review that CEMEX's Type II and V sales were outside the ordinary
course of trade. These factors were summarized as: (a) Shipping
arrangements; (b) profitability of sales; (c) marketing reasons, other
than profit; (d) volume of sales; and (e) historical sales trends.
Thus, in the instant review, according to CEMEX, the Department had
no need for information on home market sales of Type I cement in order
to determine that sales of Types II and V were made in the ordinary
course of trade. CEMEX maintains the Department never rendered a
decision in its ordinary-course-of-trade investigation and, therefore,
never demonstrated its need for sales data on Type I cement. CEMEX
claims that the administrative burden and cost of submitting sales data
on ``similar'' merchandise, i.e., Type I cement, is not justified in
this case, since CEMEX was able to supply sufficient data on sales of
identical merchandise.
Petitioners suggest, in turn, that CEMEX, through its refusal to
supply the requested data on Type I sales, is attempting to ``wrest
control'' of this review from the Department by deciding unilaterally
what information the Department is entitled to receive. It is not
incumbent upon the Department, continue petitioners, to demonstrate to
respondents' satisfaction the relevance of any given information
sought. Yet, petitioners suggest, this is precisely the standard CEMEX
is attempting to impose in this review. Petitioners maintain that CEMEX
would turn the Department's administrative review into ``the equivalent
of a federal court discovery dispute, where the respondent is free to
object to substantial portions of the questionnaire on relevance and
other grounds.'' See Petitioners' Rebuttal Brief, July 11, 1994, pages
2 and 8.
Petitioners maintain that the Department had good cause to request
Type I sales data, as this information would be vital in conducting an
investigation of whether CEMEX's sales of Type II and Type V during the
period of review were or were not within the ordinary course of trade.
Petitioners argue that full and complete responses to the Department's
information requests are necessary; otherwise, petitioners aver, the
Department would be forced to operate ``in a vacuum'' in making any
ordinary-course-of-trade determination. Finally, petitioners contend
that contrary to CEMEX's claims, the record of this review for the
1992-1993 period is not sufficient to demonstrate that CEMEX's Type II
and Type V sales were within the ordinary course of trade. Petitioners
note that in the 1991-1992 review, the entire ordinary-course-of-trade
issue hinged on a comparison of CEMEX's treatment of home market Type
II and Type V cement sales with its treatment of home market Type I
sales.
Department's Position: We agree with petitioners that it is not
incumbent upon the Department to demonstrate to CEMEX's satisfaction
the relevance of any given information sought. In the conduct of an
administrative review, the Department is routinely confronted with
voluminous data and various possible interpretations of these data. It
would be impossible to state with complete confidence, at the outset of
a proceeding, precisely what information will eventually be deemed
relevant in arriving at the final results of a review. This presumes a
level of prescience neither the Department nor respondents themselves
can legitimately claim. Therefore, the Department must frame its
requests for information after considering all the facts at its
disposal at the time the information requests are made. At times,
subsequent requests for information may be issued as the Department
interprets the data that it has received. Generally, however, the
statutory and regulatory deadlines of antidumping proceedings often do
not allow the Department to use such a staggered approach; this is
especially true where the subsequently requested data would be
voluminous or itself capable of various reasonable interpretations
which might require further clarification.
While the Department is by no means obligated to state the specific
reasons for requesting information prior to its submission by a
respondent, in the instant review, the Department did, in fact,
explicitly state its grounds for insisting on Type I home market sales
data. On three separate occasions in this review, we requested the
necessary data on Type I cement sales. In our questionnaire, under
``Home Market Sales,'' we asked CEMEX to report ``all sales of the
subject merchandise,'' i.e., Types I, II and V cement. See the
Department's questionnaire, dated October 14, 1993, at pages 10 and
14A, which is on file in the Central Records Unit, Room B-099 of the
Main Commerce Building. CEMEX requested clarification of its reporting
requirements, which we provided in a letter dated November 29, 1993. We
explained that, as we had been unable to use home market sales data on
Type II and Type V cement for comparison purposes in the prior review,
the Department would require home market Type I sales data in the third
review. See Letter from Division Director/OADC to CEMEX dated November
29, 1993. Later, in our supplemental questionnaire, we reiterated our
need for Type I sales data, stating ``[t]hese sales are relevant to
your claims that home market sales of Type II and Type V cement are
within the ordinary course of trade.'' See Letter from Division
Director/OADC to CEMEX dated February 4, 1994, Section V.A.
We also explained at length in a decision memorandum dated April
18, 1994, and then in our preliminary results of review, why
information on home market Type I sales was crucial to determining if
CEMEX's home market sales of Type II and Type V cement had been made in
the ordinary course of trade. See Decision memorandum to Joseph A.
Spetrini dated April 18, 1994, Use of BIA in the Third Administrative
Review; see also Preliminary Results of Antidumping Duty Administrative
Review: Gray Portland Cement and Clinker from Mexico, 59 FR 28844 (June
3, 1994).
We had previously determined, in the course of the prior review,
that [[Page 26868]] CEMEX's sales of Type II and Type V cement in the
home market had been made outside the ordinary course of trade (after
comparing these sales to sales of Type I cement); therefore, we were
unable to use CEMEX's Type II and Type V sales data for comparison
purposes. In the instant review, we requested data on sales of such
(Types II and V cement) and similar (Type I) merchandise in order to
conduct the same type of analysis that we conducted in the prior
review, and to determine whether CEMEX's home market sales of Type II
and Type V cement during the instant period of review had been made in
the ordinary course of trade. CEMEX refused to comply with the
Department's repeated requests for Type I sales data. CEMEX did not
suggest that it was unable to provide this information; rather, CEMEX
asserted that the information was not relevant, and chose not to
comply.
Although CEMEX has argued that it is not required to provide its
Type I sales data, it is well established that a respondent does not
have the right to direct the Department's investigation. As the CIT
concluded in Ansaldo Componenti, S.p.A. v. U.S., 628 F. Supp. 198 (CIT
1986), ``[i]t is Commerce, and not the respondent, that determines what
information is to be provided for an administrative review.''
Moreover, the unreported Type I sales data are essential to our
analysis. As CEMEX notes in its case brief, ``[i]n cases where [the
Department] has excluded certain sales for being outside the ordinary
course of trade, the administrative record established that the subject
sales were either unrepresentative of sales in general, or were made
under unusual circumstances relative to other sales in the home
market.'' See CEMEX Case Brief, July 5, 1994 at 5 (emphasis added). Our
analysis in the 1991-1992 review used the specific information
pertaining to these ``other sales in the home market'' (i.e., sales of
Type I) as a basis for comparison to the Type II and V sales in
question. In the present case, we are unable to ascertain conclusively
whether or not CEMEX's sales of Type II and Type V cement were within
the ordinary course of trade precisely because CEMEX denied us the
requisite information regarding sales of Type I cement to arrive at
such a decision.
The Department's regulations, at Sec. 353.37(a)(1), state that the
Department will use BIA whenever the Secretary ``[d]oes not receive a
complete, accurate and timely response to the Secretary's request for
factual information.'' 19 CFR 353.37(a)(1) (1994). This same section
continues by stating that when ``an interested party refuses to provide
factual information * * * or otherwise impedes the proceeding, the
Secretary may take that into account in determining what is the best
information available.'' 19 CFR 353.37(b). As CEMEX refused to submit
information essential to our analysis of whether certain sales were
made in the ordinary course of trade, CEMEX significantly impeded the
conduct of this administrative review. For these reasons, we have
assigned CEMEX a first-tier, or uncooperative, BIA margin.
We also disagree with CEMEX's argument that the record evidence of
this review establishes that its Type II and Type V cement sales were
in the ordinary course of trade. In the 1991-1992 review, after
analyzing various data on Type I, Type II and Type V cement, we found,
first, that over 95 percent of all cement shipments fell within a
radius of 150 miles; CEMEX's shipments of Type II and Type V cements
were over far greater distances, and, unlike its sales of other cement
products, CEMEX absorbed much of the added freight costs for sales of
Types II and V. Second, the profitability of sales of Type II and Type
V cement was likewise unusual in that these sales generated lower
profits than did home market sales of other types of cement. Third, we
also found in the 1991-1992 review that CEMEX's home market sales of
Type II and Type V cement had a promotional quality which was lacking
in its other cement sales, in that CEMEX's Type II and V home market
sales were made in large measure to enhance CEMEX's corporate image.
Fourth, Type II and Type V cement accounted for a ``minuscule''
percentage of CEMEX's total cement sales, as these products represent
specialty cements sold to a ``niche'' market. Finally, with regard to
historical sales trends, we found that CEMEX did not market Type II and
Type V cement in the home market, despite the existence of a small
domestic demand, until it began production for export to the United
States (circa mid-1980s).
When viewed in their totality, these facts led the Department to
conclude that CEMEX's home market sales of Types II and V cement during
the 1991-1992 review period had been made outside the ordinary course
of trade. See Decision memorandum to Joseph A. Spetrini, dated April
18, 1994; see also, Memorandum from Holly A. Kuga to Joseph A.
Spetrini, August 31, 1993, a public version of which is on file in Room
B-099 of the Main Commerce Building. This determination was recently
upheld by the CIT in a decision issued on April 24, 1995. CEMEX, S.A.
v. United States, Slip Op. 95-72 at 14 (CIT 1995) (CEMEX).
In the present review, CEMEX argues that the existence of a home
market demand for Types II and V cement, irrespective of CEMEX's
business practices, indicates that CEMEX's sales were within the
ordinary course of trade. See, e.g., CEMEX Case Brief at 12 through 13.
Therefore, CEMEX concludes, most of the factors that the Department
analyzed on the ordinary-course-of trade issue in the 1991-1992 review
are not relevant or probative.
However, CEMEX proceeds to address each of these five factors.
While CEMEX admits that sales profitability is unusually low for its
Type II and Type V sales, it dismisses the relevance of this factor
when considered in isolation. CEMEX also maintains that relative sales
volume alone should not be determinative as to whether or not sales are
within the ordinary course of trade. See Supplemental Questionnaire
Response, February 28, 1994 (Supplemental Response) at 12 through 13.
In addition, CEMEX contends that in this analysis, the Department
should examine differences in terms of sale, not shipping distances.
The sole change from the 1991-1992 review that CEMEX claims is that it
now ``bears all transportation costs on c.i.f. delivered sales'' in the
home market, whereas in the 1991-1992 review, these costs were fully
absorbed on sales of Type II and Type V cement, and partially passed on
to the customer on Type I sales. See Supplemental Response at 8
(original emphasis).
We remain unconvinced that the mere existence of a home market
demand for Types II and V cement, in and of itself, demonstrates that
CEMEX's sales of these products were within the ordinary course of
trade. Despite its ninety-year history of cement sales in Mexico, CEMEX
made no attempt to address this specialty cement demand until the mid-
1980's when it began producing Types II and V cement for export.
Further, in any examination involving ordinary-course-of-trade issues,
as the CIT recently stated in the CEMEX case, ``[d]etermining whether
home market sales are in the ordinary course of trade requires
evaluating not just 'one factor taken in isolation but rather * * *
all the circumstances particular to the sales in question.''' Slip Op.
95-72 at 6 (quoting Murata Mfg. Co. v. United States, 820 F. Supp. 603,
607 (CIT 1993). Our decision in this case, therefore, turns on the
totality of circumstances relating to the Type II and V sales in
question and the fact that CEMEX withheld the information
[[Page 26869]] necessary to evaluate fully whether those sales are
outside the ordinary course of trade.
Contrary to CEMEX's assertion regarding the irrelevance of the
factors cited by the Department in the 1991-1992 review, we note that
an examination of these factors supports the conclusion that CEMEX's
home market sales of these specialty products ``were made under unusual
circumstances relative to other sales in the home market.'' The
evidence available to the Department regarding CEMEX's sales of Types
II and V cement suggests that the circumstances which prevailed at the
time of the Department's decision in the 1991-1992 review still obtain.
In particular, CEMEX continues to sell ``minuscule'' quantities of
these specialty cement products compared to its total production of all
cement products. CEMEX realizes a low profit on these sales. CEMEX also
concedes the promotional nature of its Type II and Type V sales,
stating that its sales of Type II and Type V cement are made in the
hope that customers ``may decide to source all their cement needs * * *
from the same company that sources their specialty cement needs.'' See
Supplemental Response at 12. In addition, CEMEX continues to ship these
``niche'' products over great distances, incurring high freight
expenses. CEMEX's contention that it now absorbs all freight expenses
on delivered sales does not alter the Department's conclusions with
respect to this issue. The fact that CEMEX incurs high freight costs
for Types II and V cement is evidence of the aberrational quality of
CEMEX's home market sales of these products. Finally, it should be
noted that the factors relied upon by the Department in this review
were upheld by the CIT in the CEMEX case, which concerned the final
results of the second administrative review. Slip Op. 95-72 at 6-14.
The available evidence appears to support the conclusion that sales
of Types II and V cement in the home market are aberrational, as noted
above. However, the Department has not been able to reach a definitive
conclusion on this point due to respondent's failure to supply the
requested information on home market Type I sales, which is vital to
determining whether any of these factors have changed. Absent some
benchmark (i.e., home market sales of similar merchandise, such as Type
I cement) against which to measure the Type II and Type V sales in
question, the Department is unable to determine whether Type II and
Type V sales in this review period were made within the ordinary course
of trade. Therefore, as CEMEX's actions prevented the Department from
making this determination, our resort to BIA is justified.
Further, even if the Department had been able, using the
information supplied by CEMEX in this review, to determine that the
Types II and V cement sales were outside the ordinary course of trade,
we would still have needed the Type I data to conduct our antidumping
duty analysis. This is another reason why CEMEX's failure to report
these data supports the Department's conclusion that it needed to use
adverse BIA in this case.
Comment 3: Petitioners insist that in the event the Department
reverses its preliminary BIA decision altogether, and opts to use
CEMEX's submissions of Type II and Type V sales data, the Department
must follow the decision of the Federal Circuit in Ad Hoc Committee of
AZ-NM-TX-FL Producers v. United States, 13 F.3d 398 (Fed. Cir. 1994),
and treat pre-sale home market transportation costs as indirect
expenses in calculating FMV.
Department's Position: As we have not reversed our preliminary
decision with regard to BIA, the treatment of pre-sale home market
transportation costs is not at issue in this review.
Comment 4: Petitioners contend that the Department's application in
the present review of its ``two-tier'' system of BIA, set forth in
Antifriction Bearings And Parts Thereof from France, et al., 57 FR
28360 (June 24, 1992), is misguided. Petitioners insist that use of
first-tier BIA, reserved for those respondents deemed by the Department
to have substantially impeded a proceeding, will result in CEMEX
receiving a lower margin than would be the case had CEMEX fully
cooperated in the instant review by providing the data requested on
home market sales of Type I cement. Rather, petitioners continue, the
Department must choose as BIA a rate which will (a) induce a non-
cooperative respondent to provide complete and timely responses in any
future proceeding; and (b) not leave a respondent ``in a better
position, as a result of its noncompliance, than it would have had it
provided the Department with complete, accurate and timely data.''
Petitioners' Case Brief, July 5, 1994, at 3 and 4, quoting Silicon
Metal from Argentina; Final Results of Administrative Review, 58 FR
65336 (December 14, 1993). Petitioners argue that the Department is not
required to ``blindly'' follow its two-tier methodology; the selection
of BIA ``is made on a case-by-case basis.'' Petitioners' Case Brief at
3, citing Silicon Metal from Argentina, and Cold-Rolled Stainless Steel
Sheet from Germany; Final Results of Administrative Review, 59 FR 15888
(April 5, 1994), aff'd Krupp Stahl, A.G. v. United States, 822 F. Supp.
789 (CIT 1993). Petitioners suggest that use of first-tier, or non-
cooperative, BIA would, in effect, ``reward'' CEMEX for obstructing the
present administrative review. Petitioners suggest that CEMEX
calculated its margin using its Type I sales data, and compared this
margin to its non-cooperative BIA margin. According to petitioners,
CEMEX then made a deliberate and rational decision not to comply with
the Department's requests for information, as this information would
result in a margin substantially higher than its preliminary BIA rate
of 60.33 percent (CEMEX's rate in the original LTFV investigation, as
amended pursuant to litigation). In an effort to support this claim,
petitioners use selective data on sales of Types II and V cement taken
from CEMEX's questionnaire responses submitted in the instant review to
arrive at a margin higher than the Department's preliminary BIA rate.
See Petitioners' Case Brief, July 5, 1994 at 4, 5 and Appendix 2.
Petitioners offer three alternatives to the Department's first-tier
BIA for determining CEMEX's margin in these final results. First,
citing Silicon Metal from Argentina, 58 FR 65338 (December 14, 1993),
and the Krupp Stahl case, petitioners urge the Department to use as BIA
the highest margin from the petition, which they claim would be 111
percent. The resulting higher margin, argue petitioners, would have the
added effect of inducing CEMEX to fully comply in future administrative
reviews.
As a second alternative, petitioners suggest basing FMV on
information obtained from a CEMEX press release, submitted by
petitioners, regarding average 1992 and 1993 sales prices. United
States price (USP) would be based on CEMEX's questionnaire response and
subsequent submissions on the record of the present review for its
sales of Type II and Type V cement in the United States.
As a final alternative, petitioners suggest that the BIA rate
should be the highest rate calculated on remand from the original
investigation, or the first or second administrative reviews.
Petitioners aver that the Department, in its final results of
redetermination in the second remand of the LTFV investigation in Ad
Hoc Committee v. U.S., Court No. 90-10-00508, filed on May 12, 1994,
established a rate of 61.85 percent for CEMEX as its margin in the
[[Page 26870]] original investigation. This rate, petitioners insist,
should be selected as BIA in the instant review, should the Department
reject either of petitioners' first two alternatives. Petitioners
further contend that should the Department, pursuant to a remand in
either the first or second administrative reviews, establish a rate
higher than the 61.85 percent rate on remand in the LTFV investigation,
this higher rate should then supersede the rate from the investigation.
CEMEX counters that there is no basis for the Department to depart
from its standard two-tier methodology in selecting BIA. CEMEX notes
that this two-tier methodology has been approved by the Federal Circuit
in Allied-Signal Company v. United States, 996 F.2d 1185 (Fed. Cir.
1993). CEMEX contends that the two cases cited by petitioners as
precedent for using a more ``punitive'' BIA rate are not analogous to
the instant review, as in both prior cases, the highest rates would
have resulted in little or no change in the margins of the non-
cooperative respondents. Further, argues CEMEX, the Department in a
more recent case elected not to depart from its two-tier methodology.
See Iron Construction Castings from Canada; Final Results of
Administrative Review, 59 FR 25603 (May 17, 1994). In that case, CEMEX
maintains, first-tier BIA would result in a significant increase over
any individual rate then in effect, and the Department correctly
decided that the first-tier BIA rate ``is adverse and will achieve the
objective of encouraging complete responses in future reviews.'' Id. at
25605. CEMEX maintains that a similar situation obtains in the instant
review.
Department's Position: We disagree, in part, with petitioners. We
do not believe that the revised BIA margin of 61.85 percent is
insufficient to induce cooperation in a future proceeding. We do not
see how such a markedly adverse change in CEMEX's margin--from a margin
of 42.74 percent (the rate calculated in the second review) to 61.85
percent--would constitute ``rewarding'' a non-compliant respondent.
We also agree with CEMEX that the parallels to the Silicon Metal
and Krupp Stahl cases may be overdrawn. In both cases, first-tier BIA
would have resulted in the uncooperative respondent receiving precisely
the same margin then in effect for that company. In Silicon Metal, the
Department resorted to constructed value based, in part, on data
submitted by petitioners as first-tier BIA. In Krupp Stahl, the
Department chose a higher margin from the preliminary LTFV
determination for its BIA rate. The final results in the latter case
were upheld by the CIT. In the instant review, we note that CEMEX's
margin would not revert to the same margin previously in effect, but
would increase substantially.
For these reasons, we see no grounds for departing from our
established first-tier BIA methodology of selecting the highest margin
found for any firm either in the LTFV investigation or in a subsequent
review.
As the Department has not altered its decision to apply first-tier
BIA in this case, the alternative choices for BIA posited by
petitioners must be rejected.
Comment 5: Petitioners argue that the Department should have
completed its investigation of sales below the cost of production,
which it initiated on February 4, 1994. Petitioners suggest that when
the Department preliminarily determined to apply BIA, the sales-below-
cost investigation was merely dropped. Petitioners also fault the
Department for failing to conduct a ``fictitious market'' investigation
based on petitioners' March 30, 1994 request.
Department's Position: Since the Department has applied total BIA
to CEMEX, there is no need for the Department to expend the time and
analytical resources necessary to complete a cost investigation which
will not be used in calculating CEMEX's margin. Likewise, an
examination of petitioners' fictitious market allegation is no longer
justified, as the Department has decided to use total BIA.
Comment 6: Petitioners suggest that the Department should change
the ``All Others'' rate in this third review to reflect the
Department's results of redetermination on the second remand resulting
from Ad Hoc Committee v. U.S., Court No. 90-10-00508. The Department
filed its redetermination results on May 12, 1994. Petitioners note
that the ``All Others'' rate increased from 59.91 percent to 61.35
percent; this new rate, petitioners maintain, should be put in place
with the final results for this third review.
Department's Position: The Department will adjust the ``All
Others'' rate to reflect the CIT's affirmation of our remand
redetermination in the LTFV investigation (Ad Hoc Committee of AZ-TX-
NM-FL Producers of Gray Portland Cement v. United States, Slip Op. 94-
152 (CIT September 26, 1994)). Therefore, effective with the date of
publication of these final results, the ``All Others'' rate will be
61.35 percent.
Final Results of Review
As a result of our review, we determine the weighted-average
dumping margin for CEMEX, S.A. for the period August 1, 1992, through
July 31, 1993, to be 61.85 percent. The Department will instruct the
Customs Service to assess antidumping duties on all appropriate
entries. The Department will issue appraisement instructions directly
to the Customs Service. Furthermore, the following deposit requirements
will be effective for all shipments of the subject merchandise entered,
or withdrawn from warehouse, for consumption on or after the
publication date of these final results of review, as provided by
section 751(a)(1) of the Act: (1) The cash deposit rate for the
reviewed company will be the rate listed above; (2) for previously
reviewed or investigated companies not listed above, the cash deposit
rate will continue to be the company-specific rate published for the
most recent period; (3) if the exporter is not a firm covered in this
review, a prior review, or the original LTFV investigation, but the
manufacturer is, the cash deposit rate will be the rate established for
the most recent period for the manufacturer of the merchandise; (4) the
cash deposit rate for all other manufacturers or exporters will be
61.35 percent. These deposit requirements shall remain in effect until
publication of the final results of the next administrative review.
This notice also serves as a final reminder to importers of their
responsibility under 19 CFR 353.26 to file a certificate regarding the
reimbursement of antidumping duties prior to liquidation of the
relevant entries during this review period. Failure to comply with this
requirement could result in the Secretary's presumption that
reimbursement of antidumping duties occurred and the subsequent
assessment of double antidumping duties.
This notice also serves as the only reminder to parties subject to
administrative protective order (APO) of their responsibility
concerning the disposition of proprietary information disclosed under
APO in accordance with 19 CFR 353.34(d). Timely written notification of
return/destruction of APO materials or conversion to judicial
protective order is hereby requested. Failure to comply with the
regulations and the terms of the APO is a sanctionable violation.
This administrative review and notice are in accordance with
section 751(a)(1) of the Act (19 U.S.C. 1675(a)(1)) and 19 CFR 353.22.
[[Page 26871]] Dated: May 12, 1995.
Paul L. Joffe,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 95-12395 Filed 5-18-95; 8:45 am]
BILLING CODE 3510-DS-P
