Gray Portland Cement and Clinker From Japan; Court of International Trade Decision and Suspension of Liquidation

DEPARTMENT OF COMMERCE

[A-588-815]

Gray Portland Cement and Clinker From Japan; Court of

International Trade Decision and Suspension of Liquidation

AGENCY: Import Administration, International Trade Administration,

Department of Commerce.

SUMMARY: On March 28, 1995, in the case of Nihon Cement Co., Ltd. et

al. v. United States, Slip Op. 95-53 (Nihon), the United States Court

of International Trade (CIT) affirmed the Department of Commerce's (the

Department) redetermination on remand of the original investigation of

the antidumping duty order on gray portland cement and clinker from

Japan (56 FR 21658, May 10, 1991).

EFFECTIVE DATE: May 10, 1995.

FOR FURTHER INFORMATION CONTACT: Michelle Frederick or John Brinkmann,

Office of Antidumping Investigations, International Trade

Administration, U.S. Department of Commerce, Washington, D.C. 20230;

telephone (202) 482-0186 or 482-5288, respectively.

SUPPLEMENTARY INFORMATION:

Background

On May 10, 1991, the Department published in the Federal Register

the Antidumping Duty Order and Amendment to Final Determination of Gray

Portland Cement and Clinker from Japan. In that order, the Department

set forth its finding of weighted-average margins for two companies

during the period of investigation (December 1, 1989 through May 31,

1990), and announced its intent to instruct the U.S. Customs Service to

assess antidumping duties on all appropriate entries.

Subsequent to this determination, the two companies which were the

subject of the investigation filed lawsuits with the CIT challenging

the determination. Thereafter the CIT issued an order and Opinion dated

May 25, 1993, in Nihon Cement Co., et. al. v. United States, Court No.

91-06-00425, Slip Op. 93-80 (May 25, 1993) remanding the Department's

final determination so that the Department could: (1) Recalculate the

United States price for Onoda Cement Co.'s (Onoda) sales through Lone

Star Northwest's Oregon division; (2) articulate its underlying

reasoning regarding every element of 19 U.S.C. section 1677(16)(B)

(1988) in its product comparison analysis; (3) recalculate the dumping

margin assigned to Nihon Cement Co., Ltd. (Nihon) without collapsing

Nihon and the related entities Myojo Cement Co., Ltd. and Daiichi

Cement Co., Ltd; and (4) conduct a substantive investigation of the

service stations used by Onoda in its home market distribution system.

On September 10, 1993, the Department submitted its Final Remand

Results to the CIT. The defendant-intervenor (the petitioner)

subsequently filed a motion requesting reconsideration of the court's

order of remand in light of the decision in The Ad Hoc Committee of AX-

NM-TX-FL Producers of Gray Portland Cement v. United States, 13 F.3d

398 (Fed. Cir. 1994) (Ad Hoc Committee). In that decision, the Ad Hoc

Committee court held that the Department had no inherent, ``gap

filling'' authority to adjust for home market pre-sale movement

expenses. Thus, the CIT remanded the Department's adjustment for home

market pre-sale movement expenses for both Nihon and Onoda. In

performing the instant remands, however, the CIT agreed with the

Department that the authority exists to make such an adjustment to

foreign market value (FMV) under the circumstance-of-sale provision of

the Department's regulations (19 C.F.R. 353.56). Under this regulation,

the Department will make the adjustment to FMV only if the expenses are

determined to be directly related to the sales under investigation. To

determine whether pre-sale movement expenses are direct, the Department

examines the respondent's pre-sale warehousing expenses because the

pre-sale movement charges incurred in positioning the merchandise at

the warehouse are considered, for analytical purposes, to be

``inextricably linked'' to pre-sale warehousing expenses.

The Department's remand determination to deduct these home market

pre-sale movement expenses [[Page 24833]] from FMV with respect to

Nihon was affirmed because, consistent with 19 C.F.R. 353.56, these

expenses were demonstrated to be direct expenses. Similarly, the

Department's remand determination not to deduct the expenses from FMV

associated with Onoda purchase price transactions was affirmed because

these expenses were indirect expenses. With respect to Onoda's

exporter's sales price comparisons, the court affirmed the Department's

decision not to deduct these from FMV, but to include them in the pool

of home market indirect expenses to offset indirect expenses in the

U.S. market.

By order dated May 18, 1994, the CIT vacated and dismissed the May

25, 1993, remand with regard to the following issues: (1) The

recalculation of United States Price for Onoda's sales through Lone

Star Northwest's Oregon division; (2) the articulation of the

Department's underlying reasoning regarding every element of 19 U.S.C.

1677(16)(B) (1988) in its product comparison analysis; and (3) the

conducting of a substantive investigation of the service stations used

by Onoda in its home market distribution system.

On July 5, 1994, the Department submitted its Final Results of

Redetermination Pursuant To Court Remand for Nihon. On September 8,

1994, the Department submitted its Final Results of Redetermination

Pursuant to Court Remand with regard to Onoda and the ``All Others''

rate. The parties subsequently filed comments upon the results of the

Department's remand determinations. The Department responded to the

parties' comments on January 6, 1995, requesting that the CIT again

remand this action in order to provide the Department an opportunity to

reexamine the calculation of Nihon's margin by taking into account the

October 3, 1990, Supplemental Response submitted by Nihon during the

original investigation. By order dated January 19, 1995, the CIT

sustained the Department's remand determination with respect to the

calculation of Onoda's margin, and ordered this action remanded to the

Department for reconsideration of its calculation of Nihon's margin.

The Department submitted its Final Results of Redetermination Pursuant

To Court Remand on February 16, 1995, that determined a recalculated

weighted-average antidumping duty rate of 69.89 percent for Nihon, and

70.23 percent for ``All Others.'' Pursuant to the September 8, 1994,

Final Results of Redetermination Pursuant to Court Remand, the revised

weighted-average antidumping rate for Onoda is 70.52 percent. The CIT,

in Nihon, affirmed all redeterminations and dismissed this action on

March 28, 1995.

Suspension of Liquidation

In its decision in Timken Co. v. United States, Court No. 89-1489

(January 4, 1990) (Timken), the Federal Circuit held that the

Department must publish a notice of a decision of the CIT or the

Federal Circuit which is not ``in harmony'' with the Department's

determination. Publication of this notice fulfills this obligation. The

Federal Circuit also held that in such a case, the Department must

suspend liquidation until there is a ``conclusive'' decision in the

action. The option of appealing this decision is being weighed, and a

``conclusive'' decision can not be reached until the opportunity to

appeal expires, or any appeal is decided by the Federal Circuit.

Therefore, the Department will continue to suspend liquidation pending

the expiration of the period to appeal or pending a final decision of

the Federal Circuit if Nihon is appealed.

Date: May 4, 1995.

Paul L. Joffe,

Deputy Assistant Secretary for Import Administration.

[FR Doc. 95-11529 Filed 5-9-95; 8:45 am]

BILLING CODE 3510-DS-P