Preliminary Results of Antidumping Duty Administrative Review Gray Portland Cement and Clinker From Mexico

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]

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