Gray Portland Cement and Clinker From Mexico; Final Results Of Antidumping Duty Administrative Review

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