Federal Register / Vol. 62, No. 69 / Thursday, April 10, 1997 / Notices 17581

approval of the application is in the

public interest;

Now, therefore, the Board hereby

grants to the Grantee the privilege of

establishing a foreign-trade zone,

designated on the records of the Board

as Foreign-Trade Zone No. 219, at the

site described in the application, subject

to the Act and the Board’s regulations,

including Section 400.28.

Signed at Washington, DC, this 2nd day of

April 1997.

Foreign-Trade Zones Board.

William M. Daley,

Secretary of Commerce, Chairman and

Executive Officer.

John J. Da Ponte, Jr.,

Executive Secretary.

[FR Doc. 97–9261 Filed 4–9–97; 8:45 am]

BILLING CODE 3510–DS–P

DEPARTMENT OF COMMERCE

Foreign-Trade Zones Board

[DOCKET 25–97]

Foreign-Trade Zone 202, Los Angeles,

CA; Proposed Foreign-Trade Subzone,

Chevron U.S.A. Inc. (Oil Refinery

Complex) El Segundo, CA

An application has been submitted to

the Foreign-Trade Zones Board (the

Board) by the Los Angeles Board of

Harbor Commissioners, grantee of FTZ

202, requesting special-purpose subzone

status for the oil refinery complex of

Chevron U.S.A. Inc., located in El

Segundo, California. The application

was submitted pursuant to the

provisions of the Foreign-Trade Zones

Act, as amended (19 U.S.C. 81a-81u),

and the regulations of the Board (15 CFR

part 400). It was formally filed on March

31, 1997.

The refinery complex (256,000 BPD,

1,200 employees) is located on a 1,000-

acre site at 324 W. El Segundo

Boulevard, in El Segundo (Los Angeles

County), California, some 19 miles

south of Los Angeles. The refinery is

used to produce fuels and

petrochemical feedstocks. Fuel products

include gasoline, jet fuel, distillates,

residual fuels, naphthas and motor fuel

blendstocks. Petrochemical feedstocks

and refinery by-products include

methane, ethane, propane, propylene,

butane, petroleum coke and sulfur.

Some 19 percent of the crude oil (92

percent of inputs), and some motor fuel

blendstocks are sourced abroad.

Zone procedures would exempt the

refinery from Customs duty payments

on the foreign products used in its

exports. On domestic sales, the

company would be able to choose the

Customs duty rates that apply to certain

petrochemical feedstocks and refinery

by-products (duty-free) by admitting

incoming foreign crude oil and natural

gas condensate in non-privileged foreign

status. The duty rates on inputs range

from 5.25¢/barrel to 10.5¢/barrel. The

application indicates that the savings

from zone procedures would help

improve the refinery’s international

competitiveness.

In accordance with the Board’s

regulations, a member of the FTZ Staff

has been designated examiner to

investigate the application and report to

the Board.

Public comment is invited from

interested parties. Submissions (original

and 3 copies) shall be addressed to the

Board’s Executive Secretary at the

address below. The closing period for

their receipt is June 9, 1997. Rebuttal

comments in response to material

submitted during the foregoing period

may be submitted during the subsequent

15-day period to June 24, 1997.

A copy of the application and

accompanying exhibits will be available

for public inspection at each of the

following locations:

U.S. Department of Commerce, Export

Assistance Center, 11000 Wilshire

Blvd., Room 9200, Los Angeles,

California 90024

Office of the Executive Secretary,

Foreign-Trade Zones Board, Room

3716, U.S. Department of Commerce,

14th & Pennsylvania Avenue, NW,

Washington, DC 20230

Dated: April 2, 1997.

John J. Da Ponte, Jr.,

Executive Secretary.

[FR Doc. 97–9263 Filed 4–9–97; 8:45 am]

BILLING CODE 3510–DS–P

DEPARTMENT OF COMMERCE

International Trade Administration

[A–201–802]

Gray Portland Cement and Clinker

From Mexico; Final Results of

Antidumping Duty Administrative

Review

AGENCY: Import Administration,

International Trade Administration,

Department of Commerce.

ACTION: Notice of final results of

antidumping duty administrative

review.

SUMMARY: On May 14, 1996, the

Department of Commerce (the

Department) published the preliminary

results of its administrative review of

the antidumping duty order on gray

portland cement and clinker from

Mexico. The review covers one

manufacturer/exporter, CEMEX, S.A.

(CEMEX), and the period August 1,

1993, through July 31, 1994. We gave

interested parties an opportunity to

comment.

For our final results, we have

determined that CEMEX failed to

cooperate with the Department. As a

result, we have assigned CEMEX a

margin based upon the best information

available (BIA) in accordance with

section 776(c) of the Tariff Act of 1930,

as amended (the Act). Specifically,

when a company refuses to cooperate

with the Department or otherwise

significantly impedes the proceedings,

we assign as BIA the higher of: (a) The

highest rate found for any firm for the

same class or kind of merchandise in

the same country of origin in the lessthan-fair value (LTFV) investigation or a

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. For purposes of the instant

review, the margin applied is the

highest rate found for any firm in the

second administrative review, i.e.,

CEMEX’s margin, as amended pursuant

to court-ordered remand proceedings,

109.43 percent. See CEMEX, S.A. v.

United States, Slip Op. 96-–179 (CIT

Oct. 24, 1996), appeal pending, Appeal

No. 97–1151 (Fed. Cir.) The ‘‘All

Others’’ rate for this order is 61.35

percent.

EFFECTIVE DATE: April 10, 1997.

FOR FURTHER INFORMATION CONTACT:

Nithya Nagarajan or Kristen Smith,

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

The Department is conducting this

review in accordance with section

751(a) of the Act. Unless otherwise

indicated, all citations to the statute and

the Department’s regulations are in

reference to the provisions as they

existed on December 31, 1994.

Background

On May 14, 1996, the Department

published in the Federal Register (59

FR 2884) the preliminary results of its

administrative review of the

antidumping duty order on gray

portland cement and clinker from

Mexico (55 FR 35371). The Department

has now completed this review in

accordance with section 751(a).
17582 Federal Register / Vol. 62, No. 69 / Thursday, April 10, 1997 / Notices

Scope of the 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 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 HTS item

number 2523.10. Gray portland cement

has also been entered under HTS item

number 2523.90 as ‘‘other hydraulic

cements.’’ The HTS subheadings are

provided for convenience and U.S.

Customs Service purposes only. Our

written description of the scope remains

dispositive.

Analysis of Comments Received

The Ad Hoc Committee of AZ–NM–

TX–FL Producers of Gray Portland

Cement and the National Cement

Company of California (Petitioners) and

CEMEX submitted case briefs on June

13, 1996, and rebuttal briefs on June 20,

1996. A public hearing was held on July

9, 1996.

Comment 1

CEMEX contends that the

antidumping duty order should be

revoked and considered void ab initio

due to the Department’s alleged failure

to investigate Petitioners’ standing in

the original LTFV investigation.

Specifically, CEMEX argues that ‘‘[a]t

the time of the original investigation,

the relevant U.S. statute that prescribed

the requirement to establish standing to

file an antidumping petition contained

no express language addressing the

degree of support necessary for a

petition to be filed in a regional industry

case . . . the statute simply required

that the petition be filed ‘on behalf of’

an industry but provided no express

guidance on how compliance with this

criterion was to be determined.’’ Faced

with this lacuna in the statute, CEMEX

asserts, the Department is compelled by

the decision in Murray v. Schooner

Charming Betsy, 6 U.S. 64, 2 Cranch 64

(1804), to reinterpret U.S. law in

accordance with the international

obligations of the United States. In the

opinion of CEMEX, this means that the

Department is required (in the fourth

review) to revisit the issue of initiation

in the original investigation and abide

by a July 9, 1992 ruling by a threemember panel convened under the

auspices of the 1947 General Agreement

on Tariffs and Trade (‘‘1947 GATT’’).

See Report of the Panel, United States—

Anti-Dumping Duties on Gray Portland

Cement and Cement Clinker From

Mexico, GATT Doc. ADP/82 (July 9,

1992) (‘‘GATT Report’’). According to

CEMEX, this panel held that the

initiation of the original investigation

contravened the requirements of the

1979 GATT Antidumping Code (‘‘GATT

AD Code’’) because the Department

‘‘failed properly to ascertain’’ that ‘‘all

or almost all’’ of the regional industry

supported the original petition. If the

Department revisited the issue of

initiation in light of the GATT Report,

CEMEX maintains, it would revoke the

order ab initio, terminate all

proceedings, and refund ‘‘at the very

least, all cash deposits posted during the

POR.’’

CEMEX further maintains that the

Department has the authority to revoke

the antidumping order at this stage of

the proceeding. Citing Gilmore Steel

Corporation v. United States, 583 F.

Supp. 607 (CIT 1984), CEMEX argues

that government agencies (like the

Department) have the authority to

correct ‘‘jurisdictional defects’’ at any

time. CEMEX also argues that the

decision in Ceramica Regiomontana

S.A. v. United States, 64 F.3d 1579 (Fed.

Cir. 1995) provides ‘‘specific legal

precedent to revoke the order in this

case’’ and that its failure to challenge

the Department’s determination on

industry support for the petition during

the original LTFV investigation should

be excused given the ‘‘exception to the

doctrine of exhaustion of administrative

remedies upheld in Rhone Poulenc v.

United States, 583 F. Supp. 607 (CIT

1984).’’

The Petitioners claim, in response,

that these are the same arguments the

Department considered and rejected in

the third administrative review of this

order. Since ‘‘CEMEX has presented no

new arguments or information about

any change in circumstances that would

justify a departure from the

Department’s reasoning in the third

administrative review,’’ Petitioners

assert that the Department should reject

CEMEX’s arguments in this review.

Petitioners note that the GATT Report

was never adopted by the GATT

Antidumping Code Committee.

Therefore, given the legal framework of

the 1947 GATT, it imposed no

international legal obligation upon the

United States which might trigger the

doctrine of statutory construction

articulated in the Charming Betsy case.

Petitioners also contend that U.S. law

takes precedence over the 1947 GATT.

‘‘Accordingly, even adopted GATT

panel decisions are not binding on the

United States to the extent that such

decisions are inconsistent with U.S. law

or with the intent of Congress.’’

Petitioners further note that the

Department initiated the antidumping

investigation in accordance with U.S.

law. According to Petitioners, neither

the courts nor the Congress have

required the Department to affirmatively

establish prior to the initiation of

regional-industry cases that the petition

is supported by all or almost all of the

relevant industry. Indeed, Petitioners

assert, the Department’s longstanding

practice of presuming industry support

for a petition in the absence of evidence

to the contrary has been upheld by

numerous courts, including the Court of

Appeals for the Federal Circuit

(‘‘Federal Circuit’’) in Suramerica de

Aleaciones Laminadas, C.A. v. United

States, 966 F.2d 660, 663 (Fed. Cir.

1992).

Finally, Petitioners assert that the

Department lacks the authority to

revoke the order or otherwise rescind its

1989 initiation of the LTFV

investigation. Quoting from the final

results of the third administrative

review, the Petitioners argue that

CEMEX failed to challenge the

Department’s determination on industry

support for the petition before the Court

of International Trade (‘‘CIT’’) and,

accordingly, under sections 514(b) and

516A(c)(1) of the Act, ‘‘ ‘that

determination is final and binding on all

persons, including the Department.’ ’’

Department’s Position

For the following reasons, CEMEX’s

arguments are without merit. First, like

the GATT itself, panel reports under the

1947 GATT are not self-executing and

thus have no direct legal effect under

U.S. law.

Second, neither the 1947 GATT nor

the GATT AD Code obligates the United

States to affirmatively establish prior to

the initiation of a regional-industry case

that all or almost all of the producers in

the region support the petition. There

certainly is no suggestion in either

instrument that the standing

requirements in regional-industry cases

are any more rigorous than the standing

requirements in national-industry cases.

Furthermore, a GATT panel report,

such as the present one, has no legal

effect or formal status unless and until

it is adopted by the GATT Council or,

in the case of antidumping actions, the

GATT Antidumping Code Committee.

This follows from the fact that the 1947

GATT has, throughout its history,

operated on the basis of consensus for

purposes of decision-making in general

and the resolution of disputes in

particular. In the present case, it is

undisputed that the GATT Report has
Federal Register / Vol. 62, No. 69 / Thursday, April 10, 1997 / Notices 17583

never been adopted by the Antidumping

Code Committee. Thus, the

recommendations contained in the

report are not binding, do not impose

any international obligations upon the

United States, and do not trigger the

rule of statutory construction set forth in

the Charming Betsy case.

Third, the object of CEMEX’s

comment is not the preliminary results

of this review. Rather, CEMEX

complains about an event which

occurred over six years ago—the

initiation of the original LTFV

investigation. The time to voice such

objections before the Department was

during the investigation. Instead,

CEMEX, as well as the other Mexican

cement producers that participated in

the original investigation (Apasco, S.A.

de C.V. and Cementos de Chihuahua

(‘‘CdC’’)), sat silent before the

Department. See Final Determination of

Sales at Less Than Fair Value, Gray

Portland Cement and Clinker From

Mexico, 55 FR 29244 (1990) (hereinafter

‘‘Final LTFV Determination’’).

Moreover, neither CEMEX nor any other

party appealed the agency’s final

affirmative LTFV determination

(including the decision to initiate) to the

appropriate court, and the statute of

limitations for doing so has long

expired. See 19 U.S.C. § 1516a(a)(2)(A).

The only one who appealed the

Department’s Final LTFV Determination

was the Petitioners. They challenged

certain aspects of the Department’s final

determination before the CIT and the

Federal Circuit. See Ad Hoc Committee

Of AZ–NM–TX–FL Producers of Gray

Portland Cement v. United States, Slip

Op. 94–152 (CIT), aff’d, 68 F.3d 487

(Fed. Cir. 1995). CEMEX participated in

that litigation as an intervenor on the

side of the Department. On October 10,

1995, the Federal Circuit issued an

opinion which disposed of the last issue

in this case.

Therefore, even if the Department, of

its own volition, were to reinterpret U.S.

law in light of the GATT Report, it lacks

the legal authority in this review to

revoke the order or otherwise rescind

the initiation of the underlying

investigation. As we stated in the final

results of the third administrative

review and reaffirm here:

* * * the Department has no authority to

rescind its initiation of the LTFV

investigation. Under sections 514(b) and

516A(c)(1) of the Act, a LTFV determination

regarding initiation becomes final and

binding unless a court challenge to that

determination is timely initiated under 516A.

Even if judicial review of a determination is

timely sought, the Department’s

determination continues to control until

there is a resulting court decision ‘‘not in

harmony with that determination.’’ See 19

U.S.C. 1516a(c)(1). In this case, no one

challenged the Department’s determination

on standing before the CIT. Therefore, that

determination is final and binding on all

persons, including the Department.

Gray Portland Cement and Clinker

from Mexico; Final Results Third

Review, 60 FR 26865 (1995) (emphasis

added).

Fourth, no court, including the court

in Gilmore Steel, has ever held that the

Department has the authority, in an

administrative review under section

751(a) of the Act, to reach back more

than six years and reexamine the issue

of industry support for the original

petition. Gilmore Steel involved a

challenge to the termination of a

pending investigation based upon

information obtained in the course of

that investigation. In particular, the

petitioner contended that the

Department lacked the authority to

rescind the investigation based upon

insufficient industry support for the

petition after the 20-day period

provided for in section 732(c) of the Act

(19 U.S.C. 1673a(c)) had elapsed. 585 F.

Supp. at 673. In upholding the

Department’s determination, the court

recognized that administrative officers

have the authority to correct errors, such

as ‘‘jurisdictional defects,’’ at anytime

during the proceeding. Id. at 674–75.

The court did not state or imply that a

change in legal interpretation (in this

case a non-binding one) authorizes

administrative officers to reopen prior

agency decisions which are otherwise

final. The court simply held that the

administering authority may, in the

context of the original investigation,

rescind an ongoing proceeding after

expiration of the 20-day initiation

period.

Similarly, in Ceramica Regiomontana,

S.A. v. United States, 64 F.3d 1579 (Fed.

Cir. 1995), the respondent did not ask

the Department to reconsider and

rescind a decision made in a prior

proceeding. Indeed, the court’s entire

analysis was based upon the belief that

the prior decision—the issuance of a

countervailing duty order under former

section 303(a)(1) of the Act against

ceramic tile from Mexico—was in

accordance with law (i.e., ‘‘properly

issued’’). Ceramica Regiomontana

concerned the authority of the

Department to assess duties pursuant to

a valid order after Mexico became a

‘‘country under the Agreement’’ which

entitled it to an injury test under section

701 of the Act. The court held that the

Department lacked such authority and

ordered the agency, on remand, to

revoke the order as to all unliquidated

entries occurring after this date. Id. at

1583.

CEMEX also errs when it relies on

Rhone Poulenc v. United States to

support its claim that ‘‘an exception to

the doctrine of exhaustion of

administrative remedies’’ permits the

‘‘retroactive application of the 1992

GATT decision.’’ 583 F. Supp. 607 (CIT

1984) (a party may raise a new issue on

appeal if the applicable law has changed

due to a judicial decision that arose after

the lower court or agency issued the

contested determination). First of all,

whether CEMEX’s claim is barred by the

doctrine of exhaustion of administrative

remedies is a matter more properly

decided by a reviewing court or

binational panel under Chapter 19 of the

North American Free Trade Agreement.

Secondly, even if the issue is timely, the

exception claimed by CEMEX does not

apply. The GATT Report is not a

judicial decision and it did not change

U.S. law. In fact, as we explain above,

it did not even effect a change in the law

on the international plane (i.e., as

between Mexico and the United States).

Finally, we note, as we did in the

final results of the third review, that

numerous courts have upheld the

Department’s practice of assuming, in

the absence of evidence to the contrary,

that a petition filed on behalf of a

regional or national industry is

supported by that industry. See, e.g.,

NTN Bearing Corp. v. United States, 757

F. Supp. 1425, 1427–30 (CIT 1991);

Citrosuco Paulista v. United States, 704

F. Supp. 1074, 1085 (CIT 1988); Comeau

Seafoods v. United States, 724 F. Supp.

1407, 1410–12 (CIT).

Indeed, the very issue raised by

CEMEX in this review was before the

Federal Circuit in the Suramerica case.

966 F.2d at 665 & 667. In Suramerica

the appellees challenged the

Department’s interpretation of the

phrase ‘‘on behalf of’’ which applies to

both national- and regional-industry

cases. Specifically, the appellees argued

that the Department’s practice of

presuming industry support for a

petition was contrary to the statute and

an unadopted GATT panel report

involving the U.S. antidumping order

on certain stainless steel hollow

products from Sweden. In affirming the

Department’s practice, the Federal

Circuit observed that the phrase ‘‘on

behalf of’’ was not defined in the

statute. Id. at 666–67. The statute was,

in fact, open ‘‘to several possible

interpretations.’’ In the opinion of the

court, the Department’s practice with

regard to standing and industry support

for a petition reflected a reasonable

‘‘middle position.’’ 966 F.2d at 667.

While there was a gap in the statute, the
17584 Federal Register / Vol. 62, No. 69 / Thursday, April 10, 1997 / Notices

court stated, ‘‘Congress did make [one

thing] clear—Commerce has broad

discretion in deciding when to pursue

an investigation, and when to terminate

one.’’ Id.

The court then dismissed the

argument that the gap in the statute

must be interpreted in a manner that is

consistent with the 1947 GATT or the

GATT panel ruling:

Appellees next argue that the statutory

provisions should be interpreted to be

consistent with the obligations of the United

States as a signatory country of the GATT.

Appellees argue that the legislative history of

the statute demonstrates Congress’s intent to

comply with the GATT in formulating these

provisions. Appellees refer also to a GATT

panel—a group of experts convened under

the GATT to resolve disputes—which

‘‘recently rejected [Commerce’s] views on the

meaning of ‘on behalf of.’ ’’

We reject this argument. First, the GATT

panel itself acknowledged and declared that

its examination and decision were limited in

scope to the case before it. The panel also

acknowledged that it was not faced with the

issue of whether, even in the case before it,

Commerce had acted in conformity with U.S.

domestic legislation.

Second, even if we were convinced that

Commerce’s interpretation conflicts with the

GATT, which we are not, the GATT is not

controlling. While we acknowledge

Congress’s interest in complying with U.S.

responsibilities under the GATT, we are

bound not by what we think Congress should

or perhaps wanted to do, but by what

Congress in fact did. The GATT does not

trump domestic legislation; if the statutory

provisions at issue here are inconsistent with

the GATT, it is matter for Congress and not

this court to decide and remedy. See 19

U.S.C. § 2504(a); Algoma Steel Corp. v.

United States, 865 F.2d 240, 242 * * * (Fed.

Cir. 1989).

Id. at 667–68 (emphasis added).

Comment Two

CEMEX believes that the Department

improperly applied BIA to it in the

current review. Specifically, CEMEX

argues that the Department abused its

administrative discretion by refusing to

accept requested information on home

market sales of Type I bulk cement once

it became available. In making this

argument, CEMEX recognizes that it did

not provide data on its home market

rates of Type I bulk cement within the

time limits set by the Department. It also

recognizes that the Department’s

regulations specify that factual

information submitted in the context of

an administrative review must normally

be submitted within 180 days of the

initiation of the review. However,

CEMEX maintains, the Department has

the authority to request a party to

submit information at any time during

a proceeding and has done so on two

prior occasions within the course of this

review (August 23, 1995, supplemental

questionnaire and August 23, 1995,

request for cost of production/

constructed value response.) Pursuant to

this authority, CEMEX claims, the

Department should have ‘‘re-requested’’

and accepted a complete home market

sales listing for Type I cement.

CEMEX also argues that the

Department’s application of BIA was

‘‘premature.’’ In particular, CEMEX

claims that the missing home market

sales listing ‘‘was not ‘essential’ to the

[Department’s] review at the time that

the [Department] applied BIA.’’ CEMEX

asserts that ‘‘the application of BIA by

reason of the absence of a home market

sales listing of Type I cement would be

justified under the statute only if the

[Department] had determined * * *

that home market sales of merchandise

identical to that sold in the United

States (Type II and Type V cement)

could not be used in the calculation of

FMV.’’ According to CEMEX, the statute

permits the Department to base foreign

market value on home market sales of

merchandise similar to merchandise

sold in the United States only if home

market sales of identical merchandise

do not exist, or if the Department

determines that sales of identical

merchandise must be disregarded

because they are either (1) Insufficient

in volume to form a fair basis of

comparison with U.S. sales; (2) sold at

prices below the cost of production; (3)

made to a fictitious market; or, (4) made

outside the ordinary course of trade. In

making this argument, CEMEX

maintains that the purpose behind the

BIA provision is to prevent a

‘‘hindrance of the proceedings.’’ In the

current review, CEMEX contends that it

has not in any way hindered the

Department’s investigation with respect

to the calculation of FMV and that the

determination of whether home market

sales were made within the ordinary

course of trade could have been made

without the requested information.

In the current review, CEMEX

contends, the Department was provided

with complete sales and cost

information on merchandise identical to

that sold in the United States during the

POR—Type II and Type V cement.

Despite having this information, CEMEX

argues, the Department failed either to

use it to make an FMV calculation or to

prove that this information must be

disregarded. Therefore, CEMEX

concludes, the Department’s application

of BIA was inappropriate since ‘‘CEMEX

should have only been ‘at risk’ for use

of BIA in the event that the Department

determined Type II cement could not be

used as a basis for FMV and that data

on Type I cement was required.’’

Petitioners counter that CEMEX’s

refusal to report home market sales of

Type I cement requires the Department

to use BIA. Quoting the statute,

Petitioners assert that the Department

‘‘[s]hall, whenever a party or any other

person refuses or is unable to produce

information requested in a timely

manner and in the form required, or

otherwise impedes an investigation, use

the best information otherwise

available.’’ 19 U.S.C. 1677e(b). The

purpose behind this statutory provision,

Petitioners maintain, is to ensure that

the Department, not the respondent,

controls the antidumping proceeding.

Additionally, Petitioners submit that

CEMEX selectively withheld Type I

sales data for tactical reasons. Indeed,

Petitioners allege, CEMEX’s suggestion

that the Department request CEMEX to

report its Type I sales data after it

refused to comply with earlier requests

was merely designed to influence an

appeal to a NAFTA binational panel. In

making this assertion, Petitioners

maintain that CEMEX was fully aware of

its obligation to report home market

sales of Type I cement even before the

review was initiated. Moreover,

Petitioners argue ‘‘[e]ven if it were truly

difficult for CEMEX to provide Type I

information, it was incumbent upon

CEMEX to demonstrate that fact at a far

earlier stage of this review, not to

belatedly offer to provide the

information months after its responses

to the Department’s information

requests were due.’’

In the current review, Petitioners

argue that the Department was justified

in requesting sales information on Type

I cement. This is because, Petitioners

contend, the Department is in the best

position to know what information it

requires to make its dumping

determination. Therefore, Petitioners

state, ‘‘CEMEX’s assertion that the

Department did not need Type I sales

information because its sales of Type II

cement were within the ordinary course

of trade prejudges the outcome of an

issue that only the Department can

decide and in no way excuses CEMEX’s

refusal to supply the Type I

information.’’

Moreover, Petitioners continue, the

Department is not obligated to

continuously solicit information from

CEMEX after the company repeatedly

failed to cooperate with information

requests. The Department, Petitioners

assert, has the discretion to set and

enforce its own deadlines. Citing

Mantex, Inc. v. United States, 841 F.

Supp. 1290 (CIT 1993), Petitioners note

that a respondent’s ‘‘consistent failure to

provide Commerce with complete and
Federal Register / Vol. 62, No. 69 / Thursday, April 10, 1997 / Notices 17585

timely submissions provided Commerce

with ample reason to resort to BIA.’’

Department’s Position

The Department agrees with

Petitioners that the application of BIA in

the current review was consistent with

the law. Section 776 of the Act and

§ 353.37 of the regulations provide that

where a respondent does not furnish

requested information in a timely

manner, a determination will be made

based on BIA. Generally, the

Department will assign BIA based on

the following two-tier methodology: (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 LTFV investigation 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, and (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, 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.

In the current review, we have found

that CEMEX has significantly impeded

the proceeding by failing to provide data

pertaining to sales of Type I cement in

the home market in a timely manner. As

we explained in our preliminary results

‘‘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 the case in the second administrative

review) to address the same issue in the

fourth administrative review.’’

Preliminary Results of Antidumping

Duty Administrative Review, Gray

Portland Cement and Clinker from

Mexico 61 FR 24284. An ordinary

course of trade determination requires

evaluation of each review on an

individual basis taking into account the

relevant facts of each case. NachiFujikishi Corp. v. United States, 798 F.

Supp. 7716,719 (CIT 1992). This means

that the Department must review all

circumstances particular to the sales in

question. For this reason, we requested

information on Type I merchandise in

order to conduct the same type of

analysis that we conducted in earlier

reviews to determine whether CEMEX’s

home market sales of Type II and Type

V cement had been made in the

ordinary course of trade. As detailed

below, this information was requested

numerous times. First, the Department

sent CEMEX a standard antidumping

questionnaire on September 30, 1994,

instructing CEMEX to report all U.S.

and home market sales of subject

merchandise, including sales of Type I

cement in Mexico. On November 22,

1994, CEMEX responded to the

questionnaire. However, as in its

response in the third 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. At this time, CEMEX

claimed that its home market sales of

Type II cement were made in the

ordinary course of trade, and that it was

unnecessary to report home market sales

of Type I cement.

Next, 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

and the COP/CV data, was September

14, 1995, and September 30, 1995,

respectively—a full year after the review

was initiated.

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 fourweek 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. CEMEX

expressed that an extension was

required due to 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 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; 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.

As the case history detailed above

demonstrates, CEMEX has consistently

failed to cooperate with the Department

despite repeated requests for Type I

sales information. This lack of

cooperation significantly impeded the

Department’s review. Given the

Department’s determination that

CEMEX’s home market sales of Type II

and Type V cement were outside the

ordinary course of trade in the second

administrative review, we believe that it

is necessary (as in the third

administrative review) to review the

ordinary course of trade issue in this

fourth administrative review. Gray

Portland Cement and Clinker from

Mexico: Final Results of Antidumping

Duty Administrative Review, 58 FR

47283 (1993). In the second review,

CEMEX also sold Types II and V cement

in the United States, and Types I, II, and

V in Mexico. Unlike the current review,

however, CEMEX cooperated with the

Department’s requests for information in

the second review, and supplied

information for all home market sales,

including Type I cement. Having access

to this data, the Department agreed with

Petitioner’s allegation that CEMEX’s

Type II and V sales were outside the

ordinary course of trade. Ibid., at 47255.

In a ruling issued on April 24, 1995, the

CIT sustained the Department’s

determination. CEMEX, S.A. v. United

States, Slip Op. 95–72 at 14 (CIT April

24, 1995).

In the second review, the

Department’s determination that

CEMEX’s Type II and V sales were

outside the ordinary course of trade

hinged on a comparison between home

market sales of Type I cement and Type

II and V cement. Specifically, the

Department analyzed five factors: the

volume of home market sales, sales

patterns, shipping arrangements,
17586 Federal Register / Vol. 62, No. 69 / Thursday, April 10, 1997 / Notices

profitability, and corporate image. Given

the Department’s analysis in the second

review, and the CIT’s subsequent ruling,

the Department acted reasonably in

requesting similar information (i.e., a

complete home market sales listing of

Type I cement) in the fourth review.

Had CEMEX cooperated with the

Department’s request in a timely

fashion, the Department could have

fully analyzed the factors focused upon

in the second review, and possibly other

factors as well. Transaction-specific data

on home market sales of Type I cement

would have enabled the Department to

fully examine the sizes of the

transactions, the number of customers,

customer identities, category of

customers, terms of sale, the freight

expenses incurred, and the distances

shipped. A detailed sales listing would

also have helped the Department to

confirm the accuracy of the aggregate

sales volume information provided by

CEMEX. Therefore, we do not agree

with CEMEX’s assertion that it was not

required to provide Type I cement sales

data because the Department has

allegedly not demonstrated the

relevance of this information to its

ordinary course of trade determination.

In addition, we note that, as the

Department stated in the final results of

the third review, it is not incumbent

upon the Department to demonstrate to

CEMEX’s satisfaction the relevance of

any given information sought. In the

conduct of an administrative review, the

Department is routinely confronted with

voluminous data and various possible

interpretations of these data. It would be

impossible to state with complete

confidence, at the outset of a

proceeding, precisely what information

will eventually be deemed relevant in

arriving at the final results of a review.

This presumes a level of prescience

neither the Department, nor respondents

themselves, can legitimately claim.

Therefore, the Department must frame

its request for information after

considering all the facts at its disposal

at the time the information requests are

made. At times, subsequent requests for

information may be issued as the

Department interprets the data that it

has received. Generally, however, the

statutory and regulatory deadlines of

antidumping proceedings often do not

allow the Department to use such a

staggered approach. This is especially

true where the subsequently requested

data would be voluminous or itself

capable of various reasonable

interpretations which might require

further clarifications. Moreover, even if

the Department had been able, using the

information supplied by CEMEX in this

review, to determine whether the Types

II and V cement sales were outside the

ordinary course of trade, we would still

require Type I data to conduct our

antidumping duty analysis.

For all of the foregoing reasons,

CEMEX’s failure to provide timely

information regarding its Type I home

market sales prevents the Department

from determining whether CEMEX’s

home market sales of Type II cement

were made in the ordinary course of

trade. As a result of this failure to

cooperate, the Department finds it

necessary to apply first-tier BIA of

109.43, the margin for the second

administrative review, as affirmed by

the CIT on October 24, 1996.

In addition, the Department does not

agree with CEMEX’s assertion that the

Department abused its discretion when

it refused to reopen the record and issue

yet another request for the Type I sales

information. Throughout the course of

the review CEMEX was on notice that

this information was important to the

Department’s analysis and that a failure

to cooperate might result in the

application of adverse BIA. Despite

repeated requests from the Department

and the extension of numerous

deadlines, CEMEX failed to provide the

Department with the requested

information. Its belated offer in

February of 1996, to provide the

requested data came one full year after

the original deadline for submission of

factual information and four months

after the record has closed.

The Department’s practice not to

accept new data after a particular

deadline ensures timely reporting of

data to be considered in the

administrative process. All parties to

antidumping proceedings must be given

the opportunity to comment on all

submitted information. Without

adhering to deadlines on the submission

of new information, the Department is

unable to ensure that parties have been

allotted time to review submissions and

is unable to perform comprehensive

analysis on a timely basis. As we noted

above, had CEMEX cooperated with the

Department’s request in a timely

fashion, the Department could have

fully analyzed the factors focused upon

in the second review, and possibly other

factors as well. Furthermore, to allow

CEMEX to submit new information at

such a late date would undermine

Department procedures and would

hinder the administration of future

administrative reviews.

Comment Three

CEMEX contends that the Department

erroneously determined that the absence

of a home market sales listing for Type

I cement prevented the Department from

determining whether CEMEX’s home

market sales of Type II cement were

made within the ordinary course of

trade. Rather, CEMEX argues that it

provided sufficient information to make

an ordinary course of trade

determination with respect to CEMEX’s

home market sales of Type II and Type

V cement. Specifically, CEMEX notes

that the type of information relied upon

by the Department to determine whether

CEMEX’s home market sales of identical

merchandise were outside the ordinary

course of trade in the second

administrative review period was on the

record during the present review.

Pursuant to the Department’s August

23, 1995 request, CEMEX argues that it

submitted information addressing all

five factors specified by the Department,

as well as additional information

demonstrating that there was a bona fide

home market demand for Type II and

Type V cement in Mexico and that sales

of Type II and Type V cement were not

extraordinary sales of obsolete or

sample merchandise, but rather, sales

meeting the specified needs of its home

market customers. In particular, CEMEX

claims its submissions to the

administrative record provide

information as to whether: (1) CEMEX

incurred greater expenses in shipping

Type II and Type V cement as compared

to Type I cement; (2) CEMEX shipped

Type II and Type V cement over greater

distances as compared to Type I cement;

(3) CEMEX sold Type II and Type V

cement to a niche market; (4) the

relative volume of Type II and Type V

cement was small as compared to Type

I cement; and (5) the profit on sales of

Type I cement was abnormal relative to

the profit it earned on sales of Type II

and V cement. No additional

information relevant to the ordinary

course of trade issue, CEMEX asserts,

would be obtained by submission of a

sales listing of Type I cement. Therefore,

CEMEX argues, the Department should

have reached a definitive decision

regarding the ordinary course of trade

issue.

Petitioners also object to the

Department’s conclusion that CEMEX’s

refusal to report home market sales of

Type I cement ‘‘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.’’ Rather, Petitioners

maintain, the Department should

affirmatively determine that Type II

sales were outside the ordinary course

of trade. Specifically, Petitioners argue

that the evidence of record for this

review, and the adverse inference

resulting from CEMEX’s lack of
Federal Register / Vol. 62, No. 69 / Thursday, April 10, 1997 / Notices 17587

compliance with the Department’s

repeated requests for Type I sales data

relevant to the ordinary course of trade

issue, compel such a determination.

To support their claim, Petitioners

note that CEMEX’s September 26, 1996

submission demonstrates that the five

factors the Department relied upon in

the second administrative review to

determine that sales of Type II cement

were outside the ordinary course of

trade continue to be present in the

current review. According to

Petitioners, CEMEX concedes that (1)

CEMEX ‘‘ships Type II cement over

greater distances than Type I cement’’

and that differences in shipping

distances are the result of the locations

of the plants which produce each type

of cement; (2) the differences in profit

between Type I and Type II cement

result from ‘‘the higher costs involved to

transport cement to customers’; (3) there

was a promotional quality to CEMEX’s

sale of Type II cement; (4) Type II

cement represented a ‘‘specialty

market’; and (5) CEMEX only began to

sell Type II cement in Mexico when it

began production for export in the mid1980s despite the fact that there had

been small domestic demand for the

product.

Petitioners also argue that the

determination that sales of Type II

cement were outside the ordinary

course of trade is justified by the

adverse inference created by CEMEX’s

refusal to report Type I sales.

Petitioner’s note that the Department

made it clear to CEMEX that it wanted

Type I sales data to use as a benchmark

for determining whether Type II sales

were outside the ordinary course of

trade. Based on CEMEX’s failure to

report this data, Petitioners argue, the

Department should have inferred that

the Type I information would have been

adverse to CEMEX’s claim that Type II

sales were in the ordinary course of

trade.

Department’s Position

The Department is not able to

conclude whether sales of Type II and

Type V cement were made within the

ordinary course of trade because

CEMEX failed to supply the requested

information on home market Type I

sales. As the Department stressed in the

third review, ‘‘[a]bsent some benchmark

(i.e., home market sales of similar

merchandise, such as Type I cement)

against which to measure the Type II

and Type V sales in question, the

Department is unable to determine

whether sales of Type II and Type V

cement during this review period were

made within the ordinary course of

trade.’’ Had CEMEX cooperated with the

Department’s request in a timely

fashion, the Department could have

fully analyzed the factors focused upon

in the second review, and possibly other

factors as well. Therefore, as CEMEX’s

actions prevented the Department from

making an important determination in

this review, our resort to BIA is

justified.

Comment Four

Petitioners argue that the

Department’s preliminary results

unjustifiably rely on the ‘‘first-tier’’ BIA

rate applied to uncooperative

respondents under the Department’s

standard two-tier methodology.

Specifically, Petitioners insist that the

presumption that the first-tier BIA rate

(i.e., 61.85 percent) is adverse to CEMEX

(and thus serves the complianceinducing purposes of BIA) has been

completely rebutted. To support this

claim, Petitioners contend that the

Department’s practice in similar cases,

as well as the evidence of record,

mandate the use of a higher BIA rate

that is truly adverse to CEMEX.

Accordingly, Petitioners demand that

the Department select a BIA rate which

will (1) encourage future cooperation

with the Department’s information

requests, and (2) enable the Department

to accurately determine dumping

margins. To ensure these goals,

Petitioners note that the Department

applies a rule of reasonable inference

where the Department infers that the

respondent would have complied with

information requests if it had been

advantageous for the respondent to do

so. Thus, Petitioners conclude, the

Department uses as BIA a dumping

margin that is unfavorable to the

noncompliant respondent which

ensures that the respondent does ‘‘not

find itself in a better position as a result

of its noncompliance than it would have

had it provided * * * complete,

accurate and timely data.’’ Petitioners’

Case Brief at 47 citing Silicon Metal

From Argentina, 58 FR At 65,338.

Generally, Petitioners acknowledge,

the Department relies on its standard

two-tier methodology in choosing BIA

and applies the highest prior margin to

a noncompliant respondent. However,

Petitioners explain, both the Department

and the courts have emphasized that

this standard methodology ‘‘merely

establishes a presumption that the

highest prior margins are the best

information available’’ which can be

rebutted by evidence demonstrating that

the margin would be higher had the

respondent complied with the

Department’s information requests.

Petitioners’’ Case Brief at 48 citing

Allied-Signal Aerospace Co. v. United

States, 996 F.2d 1185,1191 (Fed. Cir.

1993).

Pointing to evidence on the record,

Petitioners insist that they have

‘‘unequivocally’’ demonstrated that the

61.85 percent first-tier BIA rate is not

adverse to CEMEX and, therefore, the

presumption that the highest prior

margin is the best information available

has been rebutted. To support this

claim, Petitioners refer to the third

administrative review where the

Department relied on a first-tier BIA rate

of 61.85 percent, the same rate used in

the preliminary results for this review.

In the third review, Petitioners note, the

Department stated that ‘‘[we do not

believe that the revised margin of 61.85

percent is insufficient to induce

cooperation in a future proceeding.’’

However, Petitioners insist, this is

exactly what happened; CEMEX

continued to defy the Department’s

requests for home market sales data for

Type I cement.

Based on pricing information

supplied in a September 14, 1994

CEMEX offering circular for the sale of

certain securities in the United States,

Petitioners calculated a dumping margin

of 83.35 percent. Petitioners argue that

this information is at least as reliable, if

not more so, than any pricing data

reported by CEMEX in the course of the

administrative review, since both

CEMEX and its underwriters and

outside counsel were under a legal

obligation to accurately report pricing

data in the offering circular.

Additionally, Petitioners point to

administrative and case law where they

claim the Department, in factually

similar cases, has found that the

presumption in favor of the two-tier

methodology has been rebutted and has

applied a BIA rate higher than the firsttier rate. See Certain Malleable Cast Iron

Pipe Fittings From Brazil, 60 FR 41,876

(1995); Cold-Rolled Stainless Steel

Sheet From Germany, 59 FR 15,888

(1994), aff’d, Krupp Stahl A.G. v. United

States, 822 F. Supp. 789 (CIT 1993);

Silicon Metal From Argentina, FR

65,336 (1993). In particular, Petitioners

cite Steel Wire Rope From the Republic

of Korea, 60 FR 63,499 (1995), where,

according to Petitioners, the Department

recognized that in reviews involving a

limited number of participants and,

therefore, a small number of rates

available for BIA, the standard first-tier

methodology may not induce

respondents to cooperate. Petitioners

maintain that the concern in such cases

with respect to the two-tiered

methodology is that the lack of past

rates, as well as the small number of

participants in the current review, could

allow a respondent to manipulate the
17588 Federal Register / Vol. 62, No. 69 / Thursday, April 10, 1997 / Notices

proceeding by choosing not to comply

with the Department’s requests for

information. In such cases the

cooperation-inducing function of the

BIA provision of the Act may not be

achieved by use of the two-tiered BIA

methodology, in which case the

Department will resort to alternative

sources in determining the BIA rate for

uncooperative respondents.

Specifically, Petitioners argue that no

respondent other than CEMEX has

participated in the first three

administrative reviews on gray portland

cement and, therefore, the highest

previous margin was CEMEX’s own

margin. This enabled CEMEX,

Petitioners argue, to compare the firsttier rate to the rate it would have

received on a price-to-price comparison

and, as a result, manipulate the outcome

by choosing not to cooperate.

Petitioners offer two alternatives to

the Department’s preliminary results.

First, Petitioners urge the Department to

use as total BIA the highest margin from

the petition—111 percent. The resulting

higher margin, argue Petitioners, would

have the added effect of inducing

CEMEX to comply fully in future

administrative reviews.

Alternatively, Petitioners argue that

the Department should conduct a priceto-price comparison using public home

market pricing data and CEMEX’s

reported U.S. prices. As noted above

Petitioners calculated a rate of 83.35

percent using this approach. Petitioners

claim that this approach is consistent

with other cases in which the

Department used a respondent’s

publicly available information when use

of the standard two-tier methodology

would reward the respondent for its

refusal to cooperate.

CEMEX, in turn, argues that the

Department’s analysis of its standard

two-tier BIA methodology and the

application of this methodology, as set

forth in the preliminary results, was in

accordance with law. CEMEX argues

that under the Department’s standard

two-tier BIA policy for respondents that

have been determined to be

uncooperative or who have impeded the

investigation, the Department will apply

first-tier BIA, namely, the higher of: (1)

The highest rate found for any firm in

the original investigation or in any

subsequent administrative review of

that case; or (2) the highest rate found

for any firm in the original investigation

or in any subsequent administrative

review of that case. This methodology,

CEMEX points out was reviewed by the

Federal Circuit in Allied Signal

Aerospace Co. v. United States, 996

F.2d 1185 (Fed. Cir. 1993) and found to

be fully in accordance with the law.

In the current review, CEMEX

continues, the Department used as firsttier BIA the highest margin found for

any company in the original

investigation or subsequent

administrative review that was in effect

as of the date of the Department’s

preliminary results in the fourth review,

the 61.85 percent margin assigned to

CEMEX in the final remand results of

the original investigation which was

issued by the DOC on May 12, 1994 and

affirmed by the CIT on September 26,

1994 in Ad Hoc Committee of AZ–NM–

TX–FL Producers of Gray Portland

Cement v. United States, Slip Op. 94–

152 (September 26, 1994). Since the

above-referenced rate was sufficiently

adverse to CEMEX and determined

using methodology confirmed by the

Federal Circuit, CEMEX concludes that

in the event that the Department decides

to continue using BIA for the final

results, the Department’s BIA

methodology was appropriate and

should be incorporated into the final

results.

In addition, CEMEX asserts that the

purpose of BIA is not to obtain the

highest possible margin, but rather, to

use an adverse margin to encourage

future cooperation. In the current case,

CEMEX argues, the Department’s

application of first-tier BIA in the third

administrative review successfully

induced CEMEX to cooperate with the

Department’s information requests in

the present and subsequent

administrative reviews. In this regard,

CEMEX references its February 8, 1996

offer to submit a sales listing covering

Type I cement in the present review and

its complete ‘‘cooperation.’’

Department’s Position

We disagree with Petitioners. As in

the third review, the Department sees no

grounds for departing from our wellestablished first-tier BIA methodology of

selecting the highest margin found for

any firm either in the LTFV

investigation or in a subsequent review.

Currently, the highest rate found in any

prior review or the investigation is the

109.43 percent assigned to CEMEX in

the second court ordered remand of the

second administrative review. Because

this is a higher rate than the 83.35

percent rate proposed by Petitioners,

and comparable to the 111.11 percent

rate also proposed by petitioners, we do

not need to address Petitioners’

argument that the rate used in the

preliminary result is insufficient to

induce cooperation.

We also reject CEMEX’s argument that

the rate assigned to it in the preliminary

results of this review ‘‘successfully

induced’’ it to cooperate with the

Department’s information requests. The

central purpose of the BIA rule, as

CEMEX concedes, is to induce

respondents, in the absence of any

subpoena power vested in the

Department, to provide the necessary

factual information so that the

investigating authority can achieve the

fundamental purpose of the Act—

namely, ‘‘determining current margins

as accurately as possible.’’ Rhone

Poulenc, Inc. v. United States, 899 F.2d

1185, 1191 (Fed. Cir. 1990). In the

present case, however, CEMEX did not

provide the necessary factual

information. It significantly impeded

the progress of the review and only

offered to provide requested information

one full year after the original deadline

for submission of factual information

and four months after the record had

closed.

Petitioners argue that CEMEX’s

belated offer of cooperation only came

after the Department issued its February

1, 1996 remand results in connection

with the second administrative review.

See CEMEX, S.A. v. United States, Slip

Op. 96–132 (CIT Aug. 13, 1996). These

results, Petitioners assert, put CEMEX

‘‘at risk’’ of a higher BIA rate—82.86,

(the rate from the first court remand of

the second administrative review,) as

opposed to 61.85 percent. They may be

right; however, the important point is

that CEMEX did not cooperate with the

Department’s administrative review.

Therefore, under these circumstances,

we are justified in relying upon BIA and

in relying upon our two-tier BIA

methodology.

Comment Five

Petitioners argue that if BIA is based

on the first-tier rate, the Department

must use the rate calculated on remand

in the second administrative review.

This is because, Petitioners contend,

this margin is based on a price-to-price

comparison of Type II cement sales in

the United States to Type I cement sales

in Mexico, the same comparison

CEMEX has thwarted in the current

review by refusing to supply requested

information. In making this claim,

Petitioners insist that nothing in the

statute bars the Department from using

the margin from the second review

remand proceeding as BIA simply

because that margin has not been finally

approved by the courts or published by

the Department in the Federal Register.

CEMEX counters that the use of the

82.86 percent margin, (the first court

ordered remand results of the second

administrative review,) would be

contrary to law. According to CEMEX,

the remand results in the second review

have no legal effect until they are
Federal Register / Vol. 62, No. 69 / Thursday, April 10, 1997 / Notices 17589

affirmed by the CIT. Therefore, CEMEX

argues, a margin established by the

Department in remand results may not

serve as the basis for first or second-tier

BIA unless they are affirmed. CEMEX

asserts that the Department’s use of the

61.85 percent rate continues to be the

appropriate margin upon which to base

first-tier BIA.

Department’s Position

We agree with Petitioners and

CEMEX. As noted in our response to

comment four, the Department is

applying a first-tier BIA rate of 109.43

percent, (the results from the second

court ordered remand). This rate has

been approved by the CIT. See CEMEX,

S.A. v. United States, Slip Op. 96–179

(CIT Oct. 24, 1996), appeal pending,

Appeal No. 97–1151 (Fed. Cir.)

Final Results of Review

As a result of our review, we

determine the weighted-average

dumping margin for CEMEX, S.A. for

the period August 1, 1993, through July

31, 1994, to be 109.43 percent and the

all other rate to be 61.35. The

Department will instruct the Customs

Service to assess antidumping duties on

all appropriate entries. The Department

will issue appraisement instructions

directly to the Customs Service.

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 these final results of

review, as provided for by section

751(a)(1) of the Act: (1) The cash deposit

rate for the reviewed company will be

the rate listed above; (2) for previously

reviewed or investigated companies not

listed 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; (4) the cash deposit

rate for all other manufacturers or

exporters will be 61.35 percent (LFTV

remand results). These deposit

requirements shall remain in effect until

publication of the final results of the

next administrative review.

This notice also serves as a final

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 the

antidumping duties occurred and the

subsequent assessment of double

antidumping duties.

This notice serves as the only

reminder to parties subject to

administrative protective order (APO) of

their responsibility concerning the

disposition of proprietary information

disclosed under APO in accordance

with 19 CFR 353.34(d). Timely written

notification of return/destruction of

APT materials or conversion to judicial

protective order is hereby requested.

Failure to comply with the regulations

and the terms of the APT is a

sanctionable violation.

This administrative review and notice

are in accordance with section 751(a)(1)

of the Act (19 U.S.C. 1675(a)(1)) and 19

CFR 353.22.

Dated: April 2, 1997.

Robert S. LaRussa,

Acting Assistant Secretary for Import

Administration.

[FR Doc. 97–9258 Filed 4–9–97; 8:45 am]

BILLING CODE 3510–DS–P

DEPARTMENT OF COMMERCE

International Trade Administration

[A–834–802, A–835–802, A–844–802]

Agreement Suspending the

Antidumping Investigation on Uranium

from Kazakstan, Kyrgyzstan and

Uzbekistan

AGENCY: Import Administration,

International Trade Administration,

U.S. Department of Commerce.

ACTION: Notice of price determination on

Uranium from Kazakstan, Kyrgyzstan

and Uzbekistan.

SUMMARY: Pursuant to Section IV.C.1. of

the antidumping suspension agreement

on uranium from Kazakstan,

Kyrgyzstan, and Uzbekistan, the

Department of Commerce (the

Department) calculated a price for

uranium of $15.34/lb. On the basis of

this price, the export quota for uranium

pursuant to Section IV.A. of the

Kazakstani agreement, as amended on

March 27, 1995, is 700,000 lbs. for the

period April 1, 1997, through September

30, 1997. The export quota for uranium

pursuant to Section IV.A. of the Uzbek

agreement, as amended on October 13,

1995, remains 940,000 lbs. for the

period October 13, 1996, through

October 12, 1997. Exports pursuant to

other provisions of these agreements are

not affected by this price.

EFFECTIVE DATE: April 1, 1997.

FOR FURTHER INFORMATION CONTACT:

Alexander Braier or Cindy Sonmez,

Office of Agreements Compliance,

Import Administration, International

Trade Administration, U.S. Department

of Commerce, 14th Street & Constitution

Ave., NW, Washington, DC 20230;

telephone: (202) 482–3818 or (202) 482–

0961, respectively.

PRICE CALCULATION:

Background

Section IV.C.1. of the antidumping

suspension agreements on uranium

from Kazakstan, Kyrgyzstan, and

Uzbekistan specifies that the

Department will issue its observed

market price on April 1, 1997, and use

it to determine the quota applicable to

exports from Kazakstan and Kyrgyzstan

during the period April 1, 1997, to

September 30, 1997 and from

Uzbekistan during the period of October

13, 1996 to October 12, 1997. Consistent

with the February 22, 1993, letter of

interpretation, the Department provided

interested parties with the preliminary

price determination on March 12, 1997.

Calculation Summary

Section IV.C.1. of these agreements

specifies how the components of the

market price are reached. In order to

determine the spot market price, the

Department utilized the monthly

average of the Uranium Price

Information System Spot Price Indicator

(UPIS SPI) and the weekly average of

the Uranium Exchange Spot Price (Ux

Spot). In order to determine the longterm market price, the Department

utilized the weighted-average long-term

price as determined by the Department

on the basis of information provided by

market participants and a simple

average of the UPIS U.S. Base Price for

the months in which there were new

contracts reported. The Department’s

letters to market participants provided a

contract summary sheet and directions

requesting the submitter to report his/

her best estimate of the future price of

merchandise to be delivered in

accordance with the contract delivery

schedules (in U.S. dollars per pound

U3O8 equivalent). Using the information

reported in the proprietary summary

sheets, the Department calculated the

present value of the prices reported for

any future deliveries assuming an

annual inflation rate of 2.34 percent,

which was derived from a rolling

average of the annual GDP Implicit Price

Deflator index from the past four years.

The Department used the base

quantities reported on the summary

sheet for the purpose of weightaveraging the prices of the long-term