[Federal Register Volume 61, Number 94 (Tuesday, May 14, 1996)]
[Notices]
[Pages 24283-24285]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11939]



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DEPARTMENT OF COMMERCE
[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, 1993, through July 31, 
1994, 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. Parties who submit arguments in this proceeding are requested 
to submit with the argument (1) a statement of the issue and (2) a 
brief summary of the argument.

EFFECTIVE DATE: May 14, 1996.

FOR FURTHER INFORMATION CONTACT: Nathan Bartholomew or Donna Kinsella, 
Office of Agreements Compliance, Import Administration, International 
Trade Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue NW., Washington, DC 20230; telephone (202) 482-
3793.

SUPPLEMENTARY INFORMATION:

Applicable Statute and Regulations

    Unless otherwise indicated, all citations to the statute and to the 
Department's regulations are references to the provisions as they 
existed on December 31, 1994.

Background

    On August 3, 1994, 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, 
1993, through July 31, 1994, 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 for the afore-mentioned period. On 
September 16, 1994, the Department published a notice of ``Initiation 
of Antidumping Review'' (58 FR 51053). The Department is now conducting 
a review of this respondent pursuant to section 751(a) 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.

Preliminary Results of Review

    Section 773(a)(1)(A) of the Tariff Act and 19 CFR 353.46(a) provide 
that foreign market value (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 second administrative review of this order CEMEX reported 
home market sales of Type I, Type II, and Type V cement. Following 
their receipt of this information, petitioners alleged that CEMEX's 
home market sales of Type II and Type V cement were outside the 
ordinary course of trade. See Gray Portland Cement and Clinker From 
Mexico: Final Results of Antidumping Duty Administrative Review, 58 FR 
47253, 47254 (Sept. 8, 1993). Pursuant to this allegation, we compared 
CEMEX's home market sales of Type II and Type V cement with sales of 
similar merchandise (namely, Type I cement) in order to analyze certain 
factors regarding the nature of the sales of the different types of 
cement, including freight expenses and profit levels. Id. at 47255-56. 
Based on this comparison, and on other factors explained in our

[[Page 24284]]

final determination, 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. Thus, we did not use these sales in the 
calculation of FMV.
    In the third administrative review, the Department again required 
CEMEX to report sales of subject merchandise in the home market, 
including Type I cement. We determined that it was necessary to compare 
Type II and Type V cement sales in the home market with Type I cement 
sales in the home market in order to make the ordinary-course-of-trade 
determination. We also determined that the Department needed the data 
on home market sales of Type I cement in the event CEMEX's home market 
sales of Type II and Type V cement were found to be outside the 
ordinary course of trade. As the Department explained in the final 
results of the third review:

    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.

    Gray Portland Cement and Clinker from Mexico: Final Results of 
Antidumping Duty Administrative Review, 60 FR 26869 (May 19, 1995). 
When CEMEX failed to provide the information on Type I sales in the 
third review, the Department was required by the statute to base its 
determination upon the ``best information available'' (BIA). 19 U.S.C. 
1677e(b); 19 CFR 353.37(a)(1). It should be noted that the factors 
relied upon by the Department in making the BIA determination in the 
second administrative review, and subsequently in the third review, 
were upheld by the CIT. Slip Op. 95-72 at 6-14.
    In the present administrative review, the Department sent CEMEX a 
standard antidumping questionnaire on September 30, 1994. It instructed 
CEMEX to report all U.S. and home market sales of subject merchandise, 
which includes sales of Type I cement in Mexico. On November 22, 1994, 
CEMEX responded to the questionnaire. Similar to its response in the 
third review, CEMEX reported that it only sold Type II cement in the 
United States during the period covered by the review. CEMEX limited 
its reporting to Type II sales in the U.S. and home market, and failed 
to report sales of Type I cement in the home market. CEMEX claimed in 
its November 22, 1994 response that its home market sales of Type II 
cement were made in the ordinary course of trade, and that it was 
unnecessary for it to report home market sales of Type I cement.
    On August 23, 1995, the Department issued a supplemental 
questionnaire which indicated that CEMEX must submit, inter alia, home 
market sales of Type I cement in bulk form. The questionnaire warned 
CEMEX that a failure to submit the requested information could result 
in the application of BIA. The Department also asked CEMEX to respond 
to the cost of production/constructed value (COP/CV) section of the 
questionnaire at this time. The due date for the supplemental 
information and the Type I sales data was September 14, 1995, and the 
COP/CV response was due September 30, 1995.
    CEMEX requested, in a September 5, 1995 letter, an extension of two 
weeks for its response to the Department's August 23, 1995, 
supplemental questionnaire and an additional four-week extension for 
the submission of Type I sales data. In that letter CEMEX also 
requested a six-week extension for the submission of COP/CV data. The 
stated reason for the extension request was the ``enormous'' burden 
related to the collection and preparation of sales and cost data for 
Type I cement.
    On September 6, 1995, the Department notified CEMEX that its 
request to extend the deadline for submitting the supplemental response 
(including the information on Type I cement) was denied, but that it 
was granted a three-week extension regarding the COP/CV submission.
    CEMEX submitted its supplemental questionnaire response on 
September 14, 1995. In its response, CEMEX failed to include the 
required information pertaining to Type I sales. On October 5, 1995, 
CEMEX submitted its COP/CV questionnaire response, and again failed to 
include information pertaining to sales of Type I cement. In both 
cases, the explanation for the lack of information on home market sales 
of Type I cement was the size of the reporting burden and in both cases 
CEMEX claimed that the Type I information would be forthcoming as soon 
as possible.
    Four months later, on February 8, 1996, CEMEX advised the 
Department that it was prepared to provide a listing of its home market 
sales of Type I cement in bulk form. In a letter dated February 15, 
1996 the Department informed CEMEX that the administrative record was 
closed and that no new information would be accepted.
    Given the Department's determination that CEMEX's sales of Type II 
and Type V cement in the home market were outside the ordinary course 
of trade during the second administrative review, we believe that it is 
necessary (was the case in the third administrative review) to address 
the same issue in the fourth administrative review. CEMEX, however, has 
not provided timely information regarding its Type I sales in the home 
market. Not having the home market Type I sales information prevents 
the Department from determining whether CEMEX's sales of Type II cement 
in the home market were made in the ordinary course of trade.

Best Information Available

    CEMEX argues that it should not be required to provide Type I 
cement sales data. Its failure to provide this essential information in 
a timely manner has prevented the Department from determining whether 
home market sales of Type II cement were in the ordinary course of 
trade. In the instant review, we requested data on sales of such (Type 
II 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 cement during 
the instant period of review had been made in the ordinary course of 
trade. CEMEX did not comply with the Department's repeated requests for 
Type I sales data.
    As in the previous review, where CEMEX also failed to provide data 
pertaining to sales of Type I cement in the home market, 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. Therefore we must resort to 
the use of BIA in accordance with Section 776(c) of the Tariff Act. See 
Gray Portland Cement and Clinker from Mexico: Final Results of 
Antidumping Duty Administrative Review, 60 FR 26865 (May 19, 1995).
    In connection with our use of BIA, we note that we have established 
a ``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 of merchandise in the same 
country of origin.
    2. When a company substantially cooperates with our requests for 
information, but fails to provide the information requested in a 
timely manner or in the form required,

[[Page 24285]]

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); see also 
Allied-Signal Company v. United States, 996 F.2d 1185 (Fed. Cir. 1993). 
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, as amended, i.e., CEMEX's rate of 
61.85 percent. Thus, as a result of our review, we preliminarily 
determine the dumping margin for CEMEX for the period August 1, 1993, 
through July 31, 1994, to be 61.85 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 mentioned 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: April 26, 1996.
Paul L. Joffe,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 96-11939 Filed 5-13-96; 8:45 am]
BILLING CODE 3510-DS-P