[Federal Register Volume 60, Number 90 (Wednesday, May 10, 1995)]
[Notices]
[Pages 24832-24833]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-11529]



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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