[Federal Register Volume 61, Number 233 (Tuesday, December 3, 1996)]
[Notices]
[Page 64058]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-30746]


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DEPARTMENT OF COMMERCE
[A-201-802]


Gray Portland Cement and Clinker From Mexico; Notice of Court 
Decision

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

ACTION: Notice of court decision and suspension of liquidation.

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SUMMARY: On October 24, 1996, in the case of Cemex, S.A. v. United 
States, Slip Op. 96-170, (Cemex), the United States Court of 
International Trade (the Court) affirmed the Department of Commerce's 
(the Department's) results of redetermination pursuant to remand of the 
final results of the second administrative review of the antidumping 
duty order on gray portland cement and clinker from Mexico. The period 
covered by the second review is August 1, 1991 through July 31, 1992. 
Consistent with the decision of the United States Court of Appeals for 
the Federal Circuit (Federal Circuit) in Timken Co. v. United States, 
893 F.2d 337 (Fed. Cir. 1990) (Timken), the Department will not order 
the liquidation of the subject merchandise entered or withdrawn from 
warehouse for consumption prior to a ``conclusive'' decision in this 
case.

EFFECTIVE DATE: November 3, 1996.

FOR FURTHER INFORMATION CONTACT: Robert James or John Kugelman, Office 
Eight, Enforcement Group III, Import Administration, International 
Trade Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-
5222.

SUPPLEMENTARY INFORMATION:

Background

    On September 8, 1993, the Department published in the Federal 
Register the final results of its second administrative review of the 
antidumping duty order on gray portland cement and clinker from Mexico 
(58 FR 47253 (September 8, 1993)). In those final results the 
Department set forth its determination of the weighted-average margins 
for the respondent Cemex for the period of review, August 1, 1991 
through July 31, 1992, and announced its intent to instruct the U.S. 
Customs Service to assess antidumping duties on all appropriate 
entries.
    Cemex subsequently filed suit with the Court challenging these 
final results. Thereafter, the Court published an Opinion dated April 
24, 1995, in Cemex, S.A. v. United States, Ct. No. 93-10-00659, Slip 
Op. 95-72, remanding the Department's determination with instructions 
to: (1) Request and consider difference-in-merchandise information to 
determine the suitability of a price-to-price comparison of U.S. sales 
of Types II and V cement to home market sales of Type I cement; (2) 
consider an arm's-length test of transfer prices between a cement 
distributor and a concrete manufacturer in the United States, both 
related to Cemex, for allocating profit to value added during further 
processing in the United States; (3) examine whether the Department 
articulated a new policy regarding treatment of interest income ``at a 
critical juncture,'' thus warranting consideration of factual 
information submitted by Cemex but rejected as untimely new 
information; and (4) correct our margin calculation to include CEMEX's 
sales of further-manufactured merchandise. See Cemex, S.A. v. United 
States, Slip Op. 95-72 (CIT April 24, 1995). On February 1, 1996, the 
Department filed its remand results with the Court. Cemex and 
defendant-intervenors, The Ad-Hoc Committee of AZ-NM-TX-FL Producers of 
Gray Portland Cement and the National Cement Company of California, 
Inc., challenged certain aspects of the Department's remand results.
    On August 13, 1996, the Court ordered a second remand so that the 
Department (1) could determine if the inclusion of non-subject 
merchandise in Cemex's calculation of its home market freight expenses 
is distortive; (2) deny, as either direct or indirect adjustments, 
Cemex's claimed adjustments to foreign market value for post-sale 
freight expenses in those cases where the expenses fail to qualify as a 
direct deduction from foreign market value; (3) choose an appropriate 
methodology for establishing duty assessment and estimated deposit 
rates; and (4) correct certain clerical errors discovered during the 
first remand proceeding. See Cemex, S.A. v. United States, Slip Op. 96-
132 (CIT August 13, 1996). The Department filed its second 
redetermination with the Court on September 27, 1996; the Court, on 
October 24, 1996, affirmed the Department's remand results. See Cemex, 
S.A. v. United States, Slip Op. 96-170 (CIT October 24, 1996).

Suspension of Liquidation

    In its decision in Timken, the Federal Circuit held that, pursuant 
to 19 U.S.C. 1516a(e), the Department must publish notice of a decision 
of the Court or 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. A ``conclusive'' decision cannot 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 expiration of the period to appeal or pending a 
final decision of the Federal Circuit if Cemex is appealed.

    Dated: November 25, 1996.
Joseph A. Spetrini,
Deputy Assistant Secretary, Enforcement Group III.
[FR Doc. 96-30746 Filed 12-2-96; 8:45 am]
BILLING CODE 3510-DS-P