[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