[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