[Federal Register Volume 59, Number 106 (Friday, June 3, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-13567]
[[Page Unknown]]
[Federal Register: June 3, 1994]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-201-802]
Preliminary Results of Antidumping Duty Administrative Review
Gray Portland Cement and Clinker From Mexico
AGENCY: International Trade Administration/Import Administration/
Department of Commerce.
ACTION: Notice of preliminary results of antidumping duty
administrative review.
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SUMMARY: The Department of Commerce has conducted an administrative
review of the antidumping duty order on gray portland cement and
clinker from Mexico. The review covers exports of this merchandise to
the United States during the period August 1, 1992, through July 31,
1993, and one firm, CEMEX, S.A. The results of this review indicate the
existence of dumping margins for the period.
We invite interested parties to comment on these preliminary
results.
EFFECTIVE DATE: June 3, 1994.
FOR FURTHER INFORMATION CONTACT:
Gabriel Adler, Officer of Antidumping Compliance, Import
Administration, International Trade Administration, U.S. Department of
Commerce, 14th Street and Constitution Avenue NW., Washington, DC
20230; telephone (202) 482-1757.
SUPPLEMENTARY INFORMATION:
Background
On August 3, 1992, the Department of Commerce (the Department)
published in the Federal Register (58 FR 41239) a notice of
``Opportunity to Request Administrative Review'' for the August 1,
1992, through July 31, 1993, period of review (POR) of the antidumping
duty order on gray portland cement and clinker from Mexico (55 FR
35371, August 29, 1990). In accordance with 19 CFR 353.22, CEMEX, S.A.
(CEMEX) and the petitioners, the Ad Hoc Committee of AZ-NM-TX-FL
Producers of Gray Portland Cement and the National Cement Co. of
California, Inc., requested a review. On September 30, 1993, the
Department published a notice of ``Initiation of Antidumping Review''
for CEMEX (58 FR 51053). Thus, the Department is now conducting a
review of this respondent pursuant to section 751 of the Tariff Act of
1930, as amended (the Tariff 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 of 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 number
2523.10. Gray portland cement has also been entered under number
2523.90 as ``other hydraulic cements.'' The HTS subheadings are
provided for convenience and U.S. Customs Service (the Customs Service)
purposes only. The written description remains dispositive as to the
scope of the product coverage.
Best Information Available
On October 14, 1993, we sent CEMEX a standard antidumping
questionnaire which instructed CEMEX to report U.S. sales and home
market sales of such or similar merchandise.
In a letter dated November 16, 1993, CEMEX requested that it be
excused from reporting home market sales of Type I cement, merchandise
similar but not identical to Type II and Type V cement. CEMEX noted
that during the POR it had sold only Type II and Type V cement in the
United States, and stated that it had sufficient home market sales of
these types of cement in the home market for a fair value comparison.
CEMEX argued that, in accordance with statutory requirements and the
Department's practice, fair value comparisons should, wherever
possible, be based upon sales of identical merchandise, and therefore
there was no need to report home market sales of Type I cement.
In a letter dated November 29, 1993, we denied CEMEX's request. We
noted that in the second administrative review, covering the period
August 1, 1991, through July 31, 1992, we had found that CEMEX's home
market sales of Type II and Type V cement had not been made in the
ordinary course of trade and we had disregarded those sales for
comparison purposes. We noted that, given such a finding in a previous
review, it was possible that a similar situation might exist with
regard to home market sales of Type II and Type V cement in the instant
review. We therefore required CEMEX to report home market sales of Type
I cement.
On January 10, 1994, CEMEX responded to our standard questionnaire.
In its response, CEMEX did not provide the required information
regarding home market sales of Type I cement. Rather, CEMEX argued that
in its view its home market sales of Type II and Type V cement had
always been made in the ordinary course of trade, and constituted
sufficient basis for a fair value comparison.
On February 4, 1994, we issued a supplementary questionnaire to
CEMEX that, among other things, reiterated the requirement that CEMEX
report its home market sales of Type I cement. We emphasized that these
sales relevant to CEMEX's claim that its home market sales of Type II
and Type V cement had been made in the ordinary course of trade during
the period of the third review. We noted in the cover letter that lack
or incompleteness of response might result in our relying on best
information available (BIA).
On March 1, 1994, CEMEX responded to our supplementary
questionnaire. Again, CEMEX failed to report its home market sales of
Type I cement. CEMEX reiterated its contention that its sales of
identical merchandise satisfied all statutory criteria for use in
calculating foreign market value (FMV). CEMEX argued that there was not
yet any evidence on the record of the instant review to refute this
contention, and that it was not incumbent on CEMEX to establish that
its home market sales of Type II and Type V cement were made in the
ordinary course of trade CEMEX stated that, given its position it was
not willing to incur the expense necessary to provide complete Type I
cement sales data.
Given the Department's finding that home market sales of Type II
and Type V cement were made outside the ordinary course of trade in the
period of the second review, we have been concerned about the
possibility that CEMEX's home market sales of type II and Type V cement
might also have been made outside the ordinary course of trade during
the instant POR.
Section 773(a)(1)(A) of the Tariff Act and section 353.46(a) of the
Department's regulations provide that FMV shall be based on the price
at which ``such or similar merchandise'' is sold in the exporting
country in the ``ordinary course of trade for home consumption''.
Section 771(15) of the Tariff Act defines ``ordinary course of trade''
as ``the conditions and practices which, for a reasonable time prior to
the exportation of the merchandise which is the subject of an
investigation, have been normal in the trade under consideration with
respect to merchandise of the same class or kind'' (see also 19 CFR
353.46(b)).
In the previous review, i.e., the second review, where CEMEX
reported home market sales of Type I, Type II, Type V cement,
petitioners made an allegation that CEMEX's have market sales of Type
II and Type V cement were outside the ordinary course of trade. In the
final results of the second review we compared CEMEX's home market
sales of Type II and Type V cement with sales of similar merchandise
(namely, Type I cement) within the same class or kind.
Based on this comparison and on other factors raised by
petitioners, we concluded in the second review that CEMEX's home market
sales of Type II and Type V cement were not made in the ordinary course
of trade, and we did not use them for the purposes of calculating FMV
(See Gray Portland Cement and Clinker for Mexico: Final Results of
Antidumping Duty Administrative Review; 58 FR 47253 (September 8,
1993)).
Based on this finding, we believe that it is necessary to compare
Type II and Type V cement sales with Type I cement sales to determine
whether the same conditions existed during the instant review, i.e.,
the third review. However, after several requests for information,
CEMEX has not reported Type I cement sales data that would permit such
a comparison.
Preliminary Results of Review
While CEMEX argues that it is not incumbent upon it to provide the
Type I cement sales data, its refusal to provide essential information
has prevented the Department from determining whether home market sales
of Type II and Type V cement were sold in the ordinary course of trade.
Therefore, we must resort to the use of BIA, is accordance with section
776(c) of the Traffic Act. For a detailed analysis of this issue, see
the Memorandum from the Office Director to the Deputy Assistant
Secretary for Compliance, dated May 18, 1994, which is on file in room
B-099 of the Department's main building.
As for the choice of BIA, we note that we have an established
``two-tier'' system:
1. 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 investigation (LTFV) or prior administrative review or
(b) the highest rate found in this review for any firm for the same
class or kind or merchandise in the same country of origin.
2. When a company substantially cooperated with our request for
information, but failed to provide the information requested in a
timely manner or in the form required, we use as BIA the higher of (a)
the highest rate (including the ``all others'' rate) ever applicable to
the firm for the same class or kind of merchandise from either the LTFV
investigation or a prior administrative review, or (b) the highest
calculated rate in this review for any firm for the class or kind of
merchandise from the same country of origin.
See Antifriction Bearings (Other Than Tapered Roller Bearings) and
Parts Thereof From France, et. al.; Final Results of Antidumping Duty
Administrative Reviews, 57 FR 28360, 28379 (June 24, 1992). In this
case, we are using first-tier BIA because CEMEX was uncooperative. The
BIA rate is 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 LTFV
investigation, i.e., CEMEX's rate of 60.33 percent (55 FR 29244, July
18, 1990). Thus, as a result of our review, we preliminarily determine
the dumping margin for CEMEX for the period August 1, 1992, through
July 31, 1993, to be 60.33 percent.
Case briefs and/or written comments from interested parties may be
submitted no later than 30 days after the date of publication of this
notice. Rebuttal briefs and rebuttals to written comments, limited to
issues raised in the case briefs and comments, may be filed no later
than 37 days after the date of publication of this notice.
Within 10 days of the date of publication of this notice,
interested parties to this proceeding may request a disclosure and/or a
hearing. The hearing, if requested, will take place no later than 44
days after publication of this notice. Persons interested in attending
the hearing should ascertain with the Department the date and time of
the hearing.
The Department will subsequently publish the final results of this
administrative review, including the results of its analysis of issues
raised in any such written comments or a hearing.
The Department shall determine, and the Customs Service shall
assess, antidumping duties on all appropriate entries. The Department
will issue appropriate appraisement instructions directly to the
Customs Service upon completion of this review.
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 the
final results of review, as provided by section 751(a)(1) of the Tariff
Act: (1) The cash deposit rate for the reviewed company will be the
rate determined in the final results of review; (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; and (4)
the cash deposit rate for all other manufacturers or exporters will be
59.91 percent, as explained below.
On May 25, 1993, the CIT in Floral Trade Council v. United States,
822 F. Supp. 766 (CIT 1993), and Federal-Mogul v. United States, 839 F.
Supp. 864 (CIT 1993), determined that once an ``all others'' rate is
established for a company, it can only be changed through an
administrative review. The Department has determined that in order to
implement these decisions, it is appropriate to reinstate the original
``all others'' rate from the LTFV investigation (or that rate as
amended for correction of clerical errors or as a result of litigation)
in proceedings governed by antidumping duty orders for the purposes of
establishing cash deposits in all current and future administrative
reviews.
Because this proceeding is governed by an antidumping duty order,
the ``all others'' rate for this order will be 59.91 percent, which was
the ``all others'' rate established in the final notice of the LTFV
investigation by the Department (55 FR 29244, July 18, 1990).
These deposit requirements, when imposed, shall remain in effect
until publication of the final results of the next administrative
review.
This notice also serves as a preliminary 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 administrative review and notice are in accordance with the
Tariff Act (19 U.S.C. 1675(a)(1)) and 19 CFR 353.22.
Dated: May 26, 1994.
Paul L. Joffe,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 94-13567 Filed 6-2-94; 8:45 am]
BILLING CODE 3510-DS-M
