Federal Register / Vol. 61, No. 94 / Tuesday, May 14, 1996 / Notices 24283

circular welded non-alloy steel pipe

from Romania, that are entered, or

withdrawn from warehouse for

consumption, on or after the date of

publication of this notice in the Federal

Register. The Customs Service shall

require a cash deposit or posting of a

bond equal to the estimated amount by

which the normal value exceeds the

export price as shown below. In

accordance with section 733(d) of the

Act, the suspension of liquidation based

on the Department’s preliminary

determination may not remain in effect

for more than six months (including the

statutory permissible extension). In

accordance with this provision, these

suspension of liquidation instructions

will remain in effect until May 28, 1996.

The weighted-average dumping

margins are as follows:

Exporter

Weightedaverage

percentage

margin

Metagrimex S.A ........................ 85.12

Metalexportimport S.A .............. 77.61

Romanian-Wide Rate ............... 85.12

ITC Notification

In accordance with section 735(d) of

the Act, we have notified the ITC of our

determination. As our final

determination is affirmative, the ITC

will, within 45 days, determine whether

these imports are materially injuring, or

threaten material injury to, the U.S.

industry. If the ITC determines that

material injury, or threat of material

injury does not exist, the proceeding

will be terminated and all securities

posted will be refunded or canceled. If

the ITC determines that such injury

does exist, the Department will issue an

antidumping duty order directing

Customs officials to assess antidumping

duties on all imports of the subject

merchandise entered for consumption

on or after the effective date of the

suspension of liquidation.

This determination is published

pursuant to section 735(d) of the Act.

Dated: May 6, 1996.

Paul L. Joffe,

Acting Assistant Secretary for Import

Administration.

[FR Doc. 96–11941 Filed 5–13–96; 8:45 am]

BILLING CODE 3510–DS–M

[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.

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
24284 Federal Register / Vol. 61, No. 94 / Tuesday, May 14, 1996 / Notices

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-oftrade 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 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. 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 ‘‘twotier’’ 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,
Federal Register / Vol. 61, No. 94 / Tuesday, May 14, 1996 / Notices 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 AlliedSignal 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 FederalMogul 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

[A–570–803]

Heavy Forged Hand Tools, Finished or

Unfinished, With or Without Handles,

From the People’s Republic of China;

Amendment of Final Results of

Antidumping Duty Administrative

Review

AGENCY: Import Administration,

International Trade Administration,

Department of Commerce.

ACTION: Notice of amendment of final

results of antidumping duty

administrative review.

SUMMARY: We are amending our final

results of administrative review of the

antidumping duty order on heavy forged

hand tools, finished or unfinished, with

or without handles (HFHTs), from the

People’s Republic of China published

on April 4, 1996, to reflect the

correction of a ministerial error made in

the margin calculation in those final

results. We are publishing this

amendment to the final results in

accordance with 19 CFR

353.28(c)(1995).

EFFECTIVE DATE: May 14, 1996.

FOR FURTHER INFORMATION CONTACT: Tom

Prosser or Maureen Flannery of the

Office of Antidumping Compliance,

Import Administration, International

Trade Administration, U.S. Department

of Commerce, 14th Street and

Constitution Avenue NW., Washington,

D.C. 20230; telephone (202) 482–4733.

SUPPLEMENTARY INFORMATION:

Background

The review covers two resellers of the

subject merchandise to the United

States, Fujian Machinery & Equipment

Import & Export Corporation (FMEC)

and Shandong Machinery Import &

Export Corporation (SMC), and the

period February 1, 1993 through January

31, 1994. The Department of Commerce

(the Department) published the

preliminary results on August 16, 1995

(60 FR 42516), and the final results on

April 4, 1996 (61 FR 15028).

Scope of Review

Imports covered by this review are

shipments of HFHTs from the PRC

comprising the following classes or

kinds of merchandise: (1) hammers and

sledges with heads over 1.5 kg (3.33

pounds) (hammers/sledges); (2) bars