[Federal Register Volume 61, Number 193 (Thursday, October 3, 1996)]
[Notices]
[Pages 51676-51681]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-25408]


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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: In response to requests from interested parties, the 
Department of Commerce is conducting an administrative review of the 
antidumping duty order on gray portland cement and clinker from Mexico. 
The review covers exports of subject merchandise to the United States 
during the period August 1, 1994, through July 31, 1995, 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: October 3, 1996.

FOR FURTHER INFORMATION CONTACT: Steven Presing, Nithya Nagarajan, or 
Dorothy Woster, Office VII, Import Administration, International Trade 
Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue N.W., Washington, DC 20230; telephone (202) 482-
3793.

SUPPLEMENTARY INFORMATION:

Applicable Statute and Regulations

    Unless otherwise indicated, all citations to the statute are 
references to the provisions effective January 1, 1995, the effective 
date of the amendments made to the Tariff Act of 1930 (the Act)

[[Page 51677]]

by the Uruguay Round Agreements Act (URAA). In addition, unless 
otherwise indicated, all citations to the Department's regulations are 
to the current regulations, as amended by the interim regulations 
published in the Federal Register on May 11, 1995 (60 FR 25130).

Background

    On August 1, 1995, the Department of Commerce (the Department) 
published in the Federal Register (60 FR 39150) a notice of 
``Opportunity to Request Administrative Review'' for the August 1, 
1994, through July 31, 1995, 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 aforementioned period. On 
September 15, 1995, the Department published a notice of ``Initiation 
of Antidumping Review'' (60 FR 47931). The Department is now conducting 
a review of this respondent pursuant to 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 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.

Verification

    As provided in Section 782(i) of the Act, we verified information 
provided by the respondents, using standard verification procedures, 
including on-site inspection of the manufacturer's facilities, the 
examination of relevant sales and financial records, and selection of 
original documentation containing relevant information. Our 
verification results are outlined in public versions of the 
verification reports.

Use of Facts Available

    Section 776(a) of the Act requires that the Department use the 
facts otherwise available when necessary information is not on the 
record, or an interested party withholds requested information, fails 
to provide such information in a timely manner, significantly impedes a 
proceeding, or provides information that cannot be verified. Section 
776(b) of the Act authorizes the Department to use as facts otherwise 
available information derived from the petitioner, the final 
determination, a previous administrative review, or other information 
placed on the record.
    We preliminarily determine, in accordance with section 776(a) of 
the Act, that the use of partial facts available as the basis for the 
weighted-average dumping margin is appropriate for CEMEX because 
despite the Department's attempts to verify certain information 
provided by CEMEX, the Department could not verify the information as 
required under section 782(i) of the Act. Where a party provides 
information requested by the Department but the information cannot be 
verified, section 776(a)(2)(D) of the Act requires the Department to 
use facts otherwise available. As more fully described below, we found 
the following inaccuracies in the information provided by CEMEX which 
render the responses for these variables unusable for purposes of 
margin calculations: home market freight for sales of bagged Type I 
cement; differences in merchandise (DIFMER) adjustments for the 
comparison of Type I cement sales in the home market to Type II cement 
sales in the United States; and, the interest rate used to calculate 
inventory carrying costs and imputed credit in the home market.
    First, after repeated requests by the Department, CEMEX refused to 
provide home market freight expenses for bagged Type I sales on a 
plant-specific basis. The Department has, therefore, not allowed a 
deduction for home market freight on sales of bagged Type I cement. 
Second, despite our repeated requests for DIFMER based solely on 
physical differences in merchandise, CEMEX was unwilling to isolate the 
differences in cost solely attributable to physical differences in 
merchandise. Therefore, we calculated a weighted-average DIFMER 
adjustment based on the verified data reported by CEMEX's affiliate, 
Cementos de Chihuahua (CDC), and, as an adverse assumption, a twenty 
percent upward DIFMER adjustment to normal value (NV) See CEMEX v. 
United States, Slip Op. 96-132 at 9 (CIT August 13, 1996) (upholding a 
twenty percent DIFMER adjustment under similar circumstances) to be 
applied in connection with our comparisons to all U.S. sales. Third, as 
facts available the Department is utilizing the interest rate reported 
by CEMEX's affiliated party, CDC, in lieu of the interest rate provided 
by CEMEX, in the calculation of NV. At verification it was discovered 
that CEMEX included long-term loans in the calculation of interest. 
However, CEMEX chose not to revise the reported interest rate using 
only short-term loans, therefore we used CDC's interest rate in our 
calculation.

Transactions Reviewed

    In accordance with section 751 of the Act, the Department is 
required to determine the NV and export price (EP) or constructed 
export price (CEP) of each entry of subject merchandise during the 
relevant review period. Because there can be a significant lag between 
entry date and sale date for CEP sales, it has been the Department's 
practice to examine U.S. CEP sales during the period of review. See 
Gray Portland Cement and Clinker from Japan; Final Results of 
Antidumping Duty Administrative Review, 58 FR 48826 (1993) (Department 
did not consider ESP (now CEP) entries which were sold after the POR). 
The Court of International Trade has upheld the Department's practice 
in this regard. See The Ad Hoc Committee of Southern California 
Producers of Gray Portland Cement v. United States, Slip Op. 95-195 
(CIT December 1, 1995).

Product Comparisons

    In accordance with section 771(16) of the Act, we considered all 
products produced and sold by the respondent in the home market during 
the POR, (and covered by the Scope of the Review) to be foreign like 
products for purposes of product comparisons to U.S. sales. Where there 
were no sales of identical or similar merchandise in the home market to 
compare to U.S. sales, we compared U.S. sales to the constructed value 
of the product sold in the U.S. market during the month of comparison.

Fair Value Comparisons

    To determine whether sales of gray portland cement by respondent to 
the United States were made at less than fair value, we compared the EP 
or CEP to the NV, as described in the ``Export Price and Constructed 
Export Price'' and ``Normal Value'' sections of this notice. In 
accordance with section 777A(d)(2), we calculated monthly weighted-
average prices for NV and compared

[[Page 51678]]

these to individual U.S. transactions, during the same month at the 
same level of trade.

Export Price and Constructed Export Price

    We used EP, in accordance with subsections 772(a) and (c) of the 
Act, where the subject merchandise was sold directly or indirectly to 
the first unaffiliated purchaser in the United States prior to 
importation and CEP was not otherwise warranted based on the facts of 
the record. In addition, we used CEP in accordance with subsections 
772(b), (c), and (d) of the Act, for those sales to the first 
unaffiliated purchaser that took place after importation into the 
United States.
    We made adjustments as follows:
    We calculated EP based on delivered prices to unaffiliated 
customers in the United States. Where appropriate, we made adjustments 
from the starting price for early payment discounts, foreign inland 
freight, foreign brokerage and handling, international freight, U.S. 
inland freight, U.S. brokerage and handling, and U.S. Customs duties. 
We also adjusted the starting price for billing adjustments to the 
invoice price.
    We calculated CEP sales based on delivered prices to unaffiliated 
customers. Where appropriate, we made adjustments for early payment 
discounts, credit expenses, and direct selling expenses. We deducted 
those indirect selling expenses, including inventory carrying costs, 
that related to commercial activity in the United States. We also made 
deductions for foreign brokerage and handling, foreign inland freight, 
international freight, U.S. inland freight, U.S. brokerage and 
handling, and U.S. duty. We also adjusted the starting price for 
billing adjustments to the invoice price. Finally we made an adjustment 
for CEP profit in accordance with section 772(d)(3) of the Act.

Further Manufacturing

    With respect to subject merchandise to which value was added in the 
United States prior to sale to unaffiliated U.S. customers (e.g., 
cement that was imported and further processed into finished concrete 
by U.S. affiliates of foreign exporters), we determined that the 
special rule for merchandise with value added after importation under 
section 772(e) of the Act was applicable.
    Section 772(e) of the Act provides that, where the subject 
merchandise is imported by an affiliated person and the value added in 
the United States by the affiliated person is likely to exceed 
substantially the value of the subject merchandise, we shall determine 
the CEP for such merchandise using the price of identical or other 
subject merchandise if there is a sufficient quantity of sales to 
provide a reasonable basis for comparison and we determine that the use 
of such sales is appropriate. If there is not a sufficient quantity of 
such sales or if we determine that using the price of identical or 
other subject merchandise is not appropriate, we may use any other 
reasonable basis to determine the CEP.
    To determine whether the value added is likely to exceed 
substantially the value of the subject merchandise, we estimated the 
value added based on the difference between the averages of the prices 
charged to the first unaffiliated purchaser for the merchandise as sold 
in the United States and the averages of the prices paid for the 
subject merchandise by the affiliated person. Based on this analysis, 
we estimated that the value added was at least 60 percent of the price 
charged to the first unaffiliated customer for the merchandise as sold 
in the United States. Therefore, we determined that the value added is 
likely to exceed substantially the value of the subject merchandise. 
Accordingly, for purposes of determining dumping margins for these 
sales, we have used the weighted-average CEP calculated on sales of 
identical or other subject merchandise sold to unaffiliated persons.
    No other adjustments to EP or CEP were claimed or allowed.

Normal Value

    In order to determine whether there was a sufficient volume of 
sales in the home market to serve as a viable basis for calculating NV, 
we compared respondent's volume of home market sales of the foreign 
like product to the volume of U.S. sales of the subject merchandise in 
accordance with section 773(a)(1)(C) of the Act. Since respondent's 
aggregate volume of home market sales of the foreign like product was 
greater than five percent of its aggregate volume of U.S. sales for the 
subject merchandise, we determined that the home market was viable. 
Therefore, we have based NV on home market sales.
    Where appropriate, we adjusted for discounts, credit expenses, 
warranty expenses, inland freight, and inland insurance. We also 
adjusted the starting price for billing adjustments to the invoice 
price.
    We made adjustments, where appropriate, for physical differences in 
merchandise in accordance with section 773 (a)(6)(C)(ii) of the Act. A 
weighted-average upward DIFMER adjustment was calculated using the 
methodology described in the section on Use of Facts Available. In 
addition, in accordance with section 773(a)(6), we deducted home market 
packing costs and added U.S. packing costs.

Arm's-Length Sales

    Sales to affiliated customers in the home market not made at arm's 
length were excluded from our analysis. To test whether these sales 
were made at arm's length, we compared the starting prices of sales to 
affiliated and unaffiliated customers, net of all movement charges, 
direct and indirect selling expenses, discounts and packing. Where the 
price to the affiliated party was 99.5 percent or more of the price to 
the unaffiliated party, we determined that the sales made to the 
affiliated party were at arm's length.

Cost of Production Analysis

    Petitioners alleged, on February 12, 1996, that CEMEX and its 
affiliate CDC sold gray portland cement and clinker in the home market 
at prices below COP. Based on these allegations, the Department 
determined, on February 27, 1996, that it had reasonable grounds to 
believe or suspect that CEMEX had sold the subject merchandise in the 
home market at prices below the COP. Therefore, pursuant to section 
773(b)(1) of the Act, we initiated a COP investigation in order to 
determine whether CEMEX made home market sales during the POR at prices 
below its COP.
    In accordance with section 773(b)(3) of the Act, we calculated an 
average monthly COP based on the sum of the costs of materials and 
fabrication employed in producing the foreign like product plus 
selling, general and administrative (SG&A) expenses and all costs and 
expenses incidental to placing the foreign like product in condition 
ready for shipment. In our COP analysis, we used the home market sales 
and COP information provided by the respondent in its questionnaire 
responses.
    After calculating an average monthly COP, we tested whether home 
market sales of cement were made at prices below COP within an extended 
period of time in substantial quantities and whether such prices permit 
recovery of all costs within a reasonable period of time. We compared 
model-specific average monthly COPs to the reported home market prices 
less any applicable movement charges, discounts, and rebates. In 
determining whether to disregard home market sales made at prices below 
the average COP, we examined (1) whether, within an extended period of 
time, such sales were made in substantial quantities, and

[[Page 51679]]

(2) whether such sales were made at prices which permitted the recovery 
of all costs within a reasonable period of time in the normal course of 
trade.
    Pursuant to section 773(b)(2)(C) of the Act, where less than 20 
percent of the respondent's sales of a given product were at prices 
less than COP, we did not disregard any below-cost sales of the product 
because the below-cost sales were not made in substantial quantities.

Currency Conversion

    The Department's preferred source for daily exchange rates is the 
Federal Reserve Bank. For purposes of the preliminary results, we made 
currency conversions based on the official exchange rates in effect on 
the dates of the U.S. sales as certified by the Federal Reserve Bank of 
New York pursuant to section 773(a) of the Act.
    Section 773A(a) directs the Department to use a daily exchange rate 
in order to convert foreign currencies into U.S. dollars, ignoring any 
``fluctuations.'' We determine that a fluctuation exists when the daily 
exchange rate differs from a benchmark rate by 2.25 percent or more. 
The benchmark rate is defined as the rolling average of the rates for 
the past 40 business days as reported by the Federal Reserve Bank of 
New York. When we determined that a fluctuation existed, we substituted 
the benchmark rate for the daily rate. For a complete discussion of the 
Department's exchange rate methodology, see ``Change in Policy 
Regarding Currency Conversions'' (61 FR 9434, March 8, 1996).
    Further, section 773A(b) directs the Department to allow a 60-day 
adjustment period when a currency has undergone sustained movement. A 
sustained movement has occurred when the weekly average of actual daily 
rates exceeds the weekly average of benchmark rates by more than five 
percent for eight consecutive weeks. Such an adjustment period is 
required only when a foreign currency is appreciating against the U.S. 
dollar. The use of an adjustment period was not warranted in this case 
because the Mexican peso did not appreciate against the U.S. dollar.

Ordinary Course of Trade

    Section 773(a)(1)(B) of the Act states that the NV of the subject 
merchandise is ``the price at which the foreign like product is first 
sold (or in the absence of sales, offered for sale) for consumption in 
the exporting country, in the usual commercial quantities and in the 
ordinary course of trade.'' Section 771(15) defines ordinary course of 
trade as ``the conditions and practices which, for a reasonable time 
prior to the exportation of the subject merchandise have been normal in 
the trade under consideration with respect to merchandise of the same 
class or kind.''
    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 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 
foreign market value.
    In the third and fourth administrative reviews, 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 and fourth reviews, 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 third administrative review, and subsequently on a preliminary 
basis in the fourth review, were upheld by the CIT. Slip Op. 95-72 at 
6-14.
    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 (as was the case in the third and fourth administrative 
reviews) to address the same issue in the fifth administrative review. 
In the present administrative review, the Department sent CEMEX a 
questionnaire on November 1, 1995, instructing CEMEX to report home 
market sales of Type II and Type I cement. CEMEX submitted these sales 
on January 30, 1996 and February 23, 1996, respectively.
    We have considered the totality of circumstances surrounding 
CEMEX's Type II sales. A full discussion of our conclusions, 
necessitating reference to proprietary information, is contained in a 
Departmental memorandum in the official file for this case (a public 
version of this memorandum is on file in room B-099 of the Department's 
main building). Generally, however, we have observed the following. 
First, in Mexico, Type II cement is a speciality cement sold to a 
``niche'' market. These sales represent a minuscule percentage of 
CEMEX's total sales of cement. Second, shipping arrangements for home 
market sales of Type II cement are abnormal. More than 95 percent of 
cement shipments in Mexico are within a radius of 150 miles, yet during 
the POR, CEMEX shipped Type II cement for the domestic market over 
considerably greater distances and absorbed much of the freight costs 
for these longer shipments. Third, CEMEX's profit on Type II cement 
sales in the POR is abnormal in comparison to the company's profits on 
sales of all types of cement. Finally, there are two items, historical 
sales trends and the ``promotional quality'' of Type II cement sales, 
which were cited previously as factors in the second review ordinary 
course of trade analysis, but which are not discussed in the instant 
review. On July 9, 1996, the Department issued a questionnaire which 
requested CEMEX to support its position that home market Type II cement 
sales are in the ordinary course of trade by addressing, among other 
things, ``historical sales trends'' and ``marketing reasons for sales 
other than profit.'' CEMEX's response

[[Page 51680]]

addressed all items in the questionnaire except these two items. Thus, 
the Department makes the adverse assumption that the facts regarding 
these items have not changed since the second review and that: (a) 
CEMEX did not sell Type II until it began production for export in the 
mid-eighties, despite the fact that a small domestic demand for such 
existed prior to that time; and (b) sales of Type II cement continue to 
exhibit a promotional quality that is not evidenced in CEMEX's ordinary 
sales of cement (see memorandum from Holly A. Kuga to Joseph A. 
Spetrini, dated August 31, 1993).
    These observations lead us to conclude that CEMEX's home market 
sales of Type II are not in the ordinary course of trade, and thus 
should not be used for purposes of calculating NV. In this review, 
CEMEX has provided the Department with extensive information concerning 
the decision to produce Type II exclusively in the northwest corner of 
Mexico. It claims that the decision to service the entire Mexican 
market for Type II cement from this region was based on sound business 
judgement. According to CEMEX, sales which are based on sound business 
judgement must necessarily be in the ordinary course of trade. We 
disagree. The purpose of the ordinary course of trade provision is ``to 
prevent dumping margins from being based on sales which are not 
representative'' of the home market. See Monsanto Co. v. United States, 
698 F. Supp. 275, 278 (CIT 1988). Thus, the issue is not whether such 
sales are based on sound business judgement, but whether sales of the 
particular product at issue ``are normal in the trade under 
consideration.'' See 19 U.S.C. 1677(15).
    The statute expresses a preference for matching identical 
merchandise. However, in situations where identical product types 
cannot be matched, the statute expresses a preference for basing NV on 
similar merchandise (see section 773(a)(1)(A) of the Act and section 
353.46(a) of the Department's regulations). Therefore, we have based NV 
on sales of Type I cement, since they are representative of CEMEX's 
sales of similar merchandise adjusted for ``differences in 
merchandise'' (DIFMER) based on the methodology discussed above. If, 
over time, the facts pertaining to sales of Type II cement in the home 
market change from those contained in the record of this review, we 
will reconsider whether such sales can be used as the basis for NV.

Level of Trade

    As set forth in section 773(a)(1)(B)(i) of the Act and in the 
Statement of Administrative Action (SAA) accompanying the Uruguay Round 
Agreements Act at 829-831, to the extent practicable, the Department 
will calculate NV based on sales at the same level of trade as the U.S. 
sale. When the Department is unable to find sale(s) in the comparison 
market at the same level of trade as the U.S. sale(s), the Department 
may compare sales in the U.S. and foreign markets at a different level 
of trade. See Final Determination of Sales at Less than Fair Value; 
Certain Pasta from Italy, 61 FR 30326 (June 14, 1996).
    In accordance with section 773(a)(7)(A) of the Act, if we compare 
U.S. sales at one level of trade to NV sales at a different level of 
trade, the Department will adjust the NV to account for the difference 
in level of trade if two conditions are met. First, there must be 
differences between the actual selling functions performed by the 
seller at the level of trade of the U.S. sales and the level of trade 
of the NV sale. Second, the difference must affect price comparability 
as evidenced by a pattern of consistent price differences between sales 
at the different levels of trade in the market in which NV is 
determined.
    When CEP is applicable, section 773(a)(7)(B) of the Act establishes 
the procedures for making a CEP offset when (1) NV is at a more 
advanced level of trade, and (2) the data available does not provide an 
appropriate basis for a level of trade adjustment.
    In order to determine that there is a difference in level of trade, 
the Department must find that two sales have been made at different 
stages of marketing, or the equivalent. Different stages of marketing 
necessarily involve differences in selling functions, but differences 
in selling functions (even substantial ones) are not alone sufficient 
to establish a difference in the level of trade. Similarly, seller and 
customer descriptions (such as ``distributor'' and ``wholesaler'') are 
useful in identifying different levels of trade, but are insufficient 
to establish that there is a difference in the level of trade.
    Therefore, in addition to the questions related to level of trade 
in our November 1, 1995, questionnaire, on February 14, 1996, we sent 
respondent supplemental questions related to level of trade comparisons 
and adjustments. We asked respondent to explain and document any 
claimed levels of trade adjustment on the basis of complete information 
about its system of distribution, including selling functions and 
services offered to each customer or class of customers. The 
information provided by respondent in response to this request was not 
sufficient to establish that the home market sales used to determine 
normal value were at a different level of trade than its sales in the 
United States.
    CEMEX reported two levels of trade in the home market (bulk sales 
to end-users, distributors, and ready-mixers; and bagged sales to end-
users, distributors, and ready-mixers). We examined the selling 
functions performed for each alleged level of trade and found that the 
selling functions provided by CEMEX were the same for both. Therefore, 
we determined that the two types of sales did not constitute different 
levels of trade.
    CEMEX also claimed that its further manufactured sales of concrete 
by its subsidiary Sunward Materials Inc. were sold at a different level 
of trade (to end-users) than sales of cement in the home market (to 
end-users). Although these sales were not used for comparison purposes, 
we examined and verified the selling functions performed for U.S. sales 
of concrete to end-users and determined that the cement that is a 
portion of the concrete is at the same level of trade, as adjusted, as 
home market sales of cement to end-users. We then examined and verified 
that the selling functions performed by CEMEX to end-users in the home 
market and by Sunward Materials Inc., in the U.S., as adjusted, were 
sufficiently similar to consider them to be at the same level of trade.
    CEMEX's affiliated party, CDC, reported one level of trade in the 
home market (to end-users, distributors, and ready-mixers). For the 
U.S. market, CDC claimed that it sold to the same level of trade (end-
users and ready-mixers), but claimed a CEP offset based on significant 
differences in the selling functions performed by its subsidiary Rio 
Grande Portland Cement Company. We examined and verified that the 
selling functions performed by CDC to end-users in the home market and 
by Rio Grande Portland Cement Company in the U.S., after the CEP 
deductions, were sufficiently similar to consider them to be at the 
same level of trade.
    To the extent practicable, we compared normal value at the same 
level of trade as the U.S. sale. The level of trade methodology 
employed by the Department in these preliminary results of review is 
based on the facts particular to this review. The Department will 
continue to examine its policy for making level of trade comparisons 
and adjustments for its final results of review.

[[Page 51681]]

Hyperinflation

    Due to the currency crisis that occurred during the POR, we 
requested respondents to submit information on the rates of inflation 
in our original questionnaire on November 1, 1995 and in our 
supplemental questionnaire on February 14, 1996. The data submitted by 
CEMEX indicated that the annual inflation rate in Mexico during the POR 
exceeded 35 percent. The portion of the POR from August, 1994-December, 
1994 was not considered hyperinflationary as the annualized inflation 
rate did not exceed 50 percent. However, the portion of the POR from 
January, 1995-July, 1995 was considered hyperinflationary due to the 
fact that annualized inflation rate exceeded 50 percent see Certain 
Fresh Cut Flowers from Mexico, 52 FR 6361 (March 3, 1987). Therefore, 
consistent with our prior practice, we determined that a possible 
hyperinflationary situation existed during the POR.
    For purposes of our comparison we calculated a NV for each month of 
the POR, converting the foreign currency using the methodology 
discussed in the ``Currency Conversion'' section above, and comparing 
the NV to each individual U.S. sale during the same month of the POR as 
the comparison NV.
    By using this methodology we have accounted for the effects of 
hyperinflation that were present during the POR. The hyperinflationary 
methodology employed by the Department in these preliminary results of 
review is based on the facts particular to this review. The Department 
will continue to examine its policy for its final results of review.

Preliminary Results of Review

    Thus, as a result of our review, we preliminarily determine the 
dumping margin for CEMEX for the period August 1, 1994, through July 
31, 1995, to be 107.756 percent.
    Parties to the proceeding may request disclosure within five days 
of the date of publication of this notice. Any interested party may 
request a hearing within 10 days of publication. Any hearing, if 
requested, will be held 44 days after the date of publication or the 
first business day thereafter. Case briefs and/or other written 
comments from interested parties may be submitted not later than 30 
days after the date of publication. Rebuttal briefs and rebuttals to 
written comments, limited to issues raised in those comments, may be 
filed not later than 37 days after the date of publication of this 
notice. The Department will publish its final results of this 
administrative review, including its analysis of issues raised in any 
written comments or at a hearing, not later than 180 days after the 
date of publication of this notice.
    Upon completion of this review, 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: September 25, 1996.
Robert S. LaRussa,
Acting Assistant Secretary for Import Administration.
[FR Doc. 96-25408 Filed 10-2-96; 8:45 am]
BILLING CODE 3510-DS-P