Appearances:

For CEMEX, S.A. de C.V. : Irwin P. Altschuler, David R. Amerine, Thomas P. Ondeck and Ronald M. Wisla.

For the United States Department of Commerce: Stephen J. Powell, Bernice Brown and Thomas H. Fine.

For the Southern Tier Cement Committee: Joseph W. Dorn and Michael P. Mabile.

TABLE OF CONTENTS

1. PROCEDURAL HISTORY OF THE CASE
2. FACTS
3. PANEL JURISDICTION AND THE STANDARD OF REVIEW
4. DISCUSSION

1. Exhaustion of administrative remedies
2. Use of the 109.43 percent dumping margin as BIA

1. Time period for administrative reviews
2. Investigating Authority selection of a BIA Rate

5. ORDER

SEPARATE OPINION OF PANELIST VICTOR CARLOS GARCIA MORENO

BINATIONAL PANEL OPINION AND ORDER

This binational panel review concerns a challenge by CEMEX, S.A. de C.V. ("Cemex") to the "first tier" "best information available" ("BIA") dumping margin assigned by the U.S. Department of Commerce ("Investigating Authority" or  "The Department") in its final results of the Fourth Administrative Review of the United States antidumping order, Gray Portland Cement and Clinker from Mexico (62 Fed. Reg. 17,581 (1997)). Cemex contests the Investigating Authority’s decision to use as BIA the 109.43 percent rate determined for Cemex and affirmed by the Court of International Trade in an earlier review on the ground that the 109.43 percent rate was determined well after the expiration of the 12 month period for conducting administrative reviews. The Investigating Authority, and Petitioner Southern Tier Cement Committee ("STCC"), defend the application of the 109.43 percent rate, and argue that Cemex is barred from raising this claim before this Panel for failure to exhaust administrative remedies. We affirm the Department of Commerce determination.

I. Procedural History of the case

This Panel opinion is being issued nearly 18 months after Cemex properly requested panel review on May 8, 1997 ¹, rather than within the 315 days specified in NAFTA, ² owing to factors beyond the control of either the participants or the panelists. While the Cemex complaint and various motions, discussed below, were timely filed from May through August 1997, the panel review was suspended on September 3, 1997, by the United States NAFTA Secretary because a panel had not been appointed. ³ The panel review was resumed on March 17, 1998, after the selection of panelists, ⁴ and has proceeded in a normal fashion since that date.

The Cemex complaint, filed June 6, 1997, contained two claims. Claim One charged that the Investigating Authority lacked statutory authority to impose antidumping duties because of its alleged failure to ascertain industry support for the petition during the initial investigation. Claim Two challenged the 109.43 percent BIA rate.

When the proceeding resumed on March 17, 1998, two motions were pending, which were decided by the Panel on April 20, 1998. ⁵ The Panel denied as moot a consent motion of the Investigating Authority of July 3, 1997, for an extension of time to file the administrative record, ⁶ since the record was actually filed on July 23, 1997. ⁷ The Panel also denied a motion filed on July 8, 1997, by the Petitioners ⁸ and supported by the Investigating Authority ⁹ to dismiss Claim One. The Panel declined to decide Claim One on motion rather than in the normal course of the proceedings, citing possible due process concerns (if no public hearing were held on the issue) and other procedural and cost concerns.¹⁰

A public hearing was held on August 6, 1998, in Washington, D.C. to provide participants with an opportunity for oral argument. ¹¹ At the public hearing, Cemex formally abandoned Claim One if its complaint. ¹² Simultaneous interpretation in English and Spanish was provided, and transcripts in both languages were made available to the panelists and participants.

II. Facts

The recitation of the facts in this case can be brief, as they are not in dispute. On August 30, 1990, the Investigating Authority issued an antidumping order relating to Gray Portland Cement and Clinker from Mexico. ¹³ This (fourth) administrative review was initiated by the Investigating Authority on September 16, 1994, at the request of both Cemex and STCC. ¹⁴ On May 14, 1996, the Investigating Authority issued its preliminary results, assigning Cemex a BIA rate of 61.85 percent, which at the time was the highest prior dumping margin rate determined for any producer or importer in the original investigation or subsequent reviews. ¹⁵ The Investigating Authority indicated that it used this "first-tier" BIA rate because Cemex had been uncooperative in providing certain requested information— Mexican sales data on Type I cement — to the Investigating Authority on a timely basis. ¹⁶

Subsequent to the preliminary results, but before the final results were issued, the Court of International Trade ("CIT"), on October 24, 1996, affirmed the Investigating Authority’s second remand results of the second administrative review, where the dumping rate assessed against Cemex was determined to be 109.43 percent. ¹⁷ When, on April 10, 1997, the Investigating Authority issued its final results in this fourth administrative review, it used as first-tier BIA, not the 61.85 percent rate used in the preliminary results, but the 109.43 percent rate approved by the CIT on October 24, 1996. ¹⁸ The Investigating Authority again cited Cemex’s failure to cooperate as the grounds for applying first-tier BIA, and, in accordance with Department practice, applied  "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." ¹⁹ The Department addressed at length objections by Cemex to the refusal of the Department to accept late filing of the requested information concerning Mexican sales data on Type I cement, but the Department did not specifically address reasons for changing the first-tier BIA rate from 61.85 percent used in the preliminary results to the more recently affirmed 109.43 percent used in the final results. ²⁰

Cemex complains that the final results under review by this Panel were issued by the Investigating Authority only on April 10, 1997, more than two and one half years after the review was initiated on September 16, 1994, and utilized a rate approved by the CIT on October 24, 1996, more than one year after the expiration of the 12 month period for conducting administrative reviews. ²¹

III. Binational Panel Jurisdiction and the Standard of Review

Binational panel review of final antidumping determinations by the investigating authorities of the NAFTA Parties is founded on Chapter 19 of the North American Free Trade Agreement ("NAFTA"). Article 1904.1 of NAFTA provides that "each Party shall replace judicial review of final antidumping and countervailing duty determinations with binational panel review." The term "final determinations" includes final results of administrative reviews by the Investigating Authority. ²²

The law that governs binational panel reviews is not international law, but national law.

Under NAFTA, Article 1904.2, panels are to apply:

"[T]he relevant statutes, legislative history, regulations, administrative practice, and judicial precedents to the extent that a court of the importing Party would rely on such materials in reviewing a final determination of the competent investigating authority."

This is significant. It means that panel reviews will be governed by different legal principles depending on which NAFTA country is the "importing party," which could lead to different results in different NAFTA Parties. Thus, in the United States, a common law jurisdiction, panels must rely on court decisions, in this case the CIT and the Court of Appeals for the Federal Circuit ("CAFC") which are the courts that panel review replaces. Binational panels sitting in the United States are bound by decisions of the CAFC, ²³ and will normally give great weight to precedents issued by the CIT, just as one CIT judge respects the decisions of another CIT judge. In contrast, in Mexico, a civil law country with a different legal tradition, decisions of the competent local court, the Tribunal Fiscal de la Nacion (Federal Tax Court), might well be given far less weight because in Mexico court decisions do not have the same precedential value as do court decisions in the United States. ²⁴

NAFTA Article 1904.3 directs panels to apply the "standard of review . . . that a court of the importing Party otherwise would apply . . . ." Further, Annex 1911 specifies that when the importing Party is the United States, panels will apply the standard of review specified in section 516A(b)(1)(B) of the Tariff Act of 1930, as amended (19 U.S.C. § 1516a(b)(1)(B) (1995)). Section 516A(b)(1)(B) states, in pertinent part, that "[t]he court shall hold unlawful any determination, finding or conclusion found . . . to be unsupported by substantial evidence on the record, or otherwise not in accordance with law."

Considering the NAFTA requirement that panels apply "judicial precedents" in the same manner as the national courts of the importing country, NAFTA panel review of United States agency actions is quite narrow. The Supreme Court has adopted a two-stage approach to judicial review of an agency’s interpretation of its governing statutes. In the leading case, Chevron, U.S.A., Inc. v. Natural Resources Defense Council, a unanimous Supreme Court stated the basic principle as follows:

"When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute." ²⁵

With respect to the first stage, where Congress has "unambiguously expressed" its intent, the Court stated that "[t]he judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent." ²⁶ As to the second stage, where a court determines that "Congress has not directly addressed the precise question at issue," the Court stated that the courts "need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction." ²⁷ In such a case, the law does not permit the reviewing court to substitute its own views on the proper construction of a statute for those of the Investigating Authority.

The Chevron standard of review must be applied even if judges or panelists might have favored a different, perhaps fairer or more reasonable, interpretation of the statute. Where Congress has not addressed the question, the standard of review requires judicial deference to "reasonable interpretations by an agency of a statute that it interprets." ²⁸ In such a case, it is sufficient that the interpretation of the statute by the agency is "plausible, if not preferable" in the eyes of the reviewing court. ²⁹ When the statute is silent or ambiguous, a court or a binational panel reviewing an agency interpretation must give great deference to the agency’s views. The Chevron Court stated that a court "may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency." ³⁰

"We have long recognized that considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer, and the principle of deference to administrative interpretations has been consistently followed by this Court whenever decision as to the meaning or reach of a statute has involved reconciling conflicting policies, and a full understanding of the force of the statutory policy in the given situation has depended upon more than ordinary knowledge respecting the matters subjected to agency regulations." ³¹

The importance of the standard of review is underlined by the fact that one of the very limited grounds for appeal of a binational panel decision through the "extraordinary challenge procedure," is that the panel "manifestly exceeded its powers, authority or jurisdiction . . . for example, by failing to apply the appropriate standard of review." ³² As one panel has aptly admonished, "[p]anels must conscientiously apply the standard of review", "must follow and apply the law, not create it" and "must understand their limited role and simply apply established law." ³³

IV. Discussion

The Complaint submitted by Cemex on June 6, 1997 raised two issues:

A. Claim One challenged the validity of the imposition of antidumping duties on the ground that the Investigating Authority had not determined that the petition in the original investigation had the requisite support of the regional cement industry, in alleged violation of a 1992 GATT panel decision;

B. Claim Two contended that the Investigating Authority had improperly used as BIA the margin ultimately applied by the Investigating Authority to Cemex in the second remand of the second administrative review, 109.43 percent. ³⁴

Cemex did not pursue Claim One in its briefs, ³⁵ and, as noted in Section I, counsel for Cemex confirmed at the public hearing that Cemex did not intend to pursue Claim One in this proceeding. ³⁶ Thus, only one substantive issue, Claim Two, remains. Both the Investigating Authority and the STCC have argued in their briefs that this Panel should not decide Claim Two because Cemex failed to raise that issue before the Investigating Authority during the administrative review, and thus impermissibly failed to exhaust its administrative remedies. ³⁷

We discuss the procedural issue— exhaustion of administrative remedies— first, followed by consideration of the substantive issue— whether the Investigating Authority was justified in using the 109.43 percent BIA margin in the circumstances herein. In each instance, the parties’ positions are briefly summarized at the outset.

A. Exhaustion of Administrative Remedies                        

Both the Petitioner and the Investigating Authority contended in their briefs and at oral argument that this Panel should not decide Cemex’ BIA claim because Cemex had failed to exhaust its administrative remedies before the Investigating Authority in the course of the administrative review. ³⁸ In their view, Cemex’s failure to contest the application of the 109.43 percent BIA rate during the administrative proceedings precludes Cemex from raising this issue before this Panel. ³⁹

Cemex counters that exhaustion of administrative remedies was not mandatory in this instance. The applicable statute indicates only that "the Court of International Trade shall, where appropriate, require the exhaustion of administrative remedies." ⁴⁰ Thus, the court, or this Panel, has discretion according to the circumstances to determine whether to require exhaustion, and should not do so where the affected litigant has not had an adequate opportunity to raise the issue before the administrative entity. ⁴¹ Since the Investigating Authority used what Cemex considered the appropriate BIA rate in the preliminary results, Cemex believes it had no need to comment at that time. The higher 109.43 percent margin became available owing to CIT approval in the second remand of the second administrative review, on October 24, 1996, well after the close of the comment period. ⁴²

Exhaustion of administrative remedies is generally required before a litigant will be allowed to raise a claim or issue in judicial review of agency action. ⁴³ Nevertheless, in cases other than those relating to import classification, Congress has left the matter to judicial discretion. The applicable statute provides "the Court of International Trade shall, where appropriate, require the exhaustion of administrative remedies." ⁴⁴ Thus, unless it considers exhaustion "appropriate", the CIT will allow a party to raise an issue not previously raised with the Investigating Authority. In determining whether to require exhaustion of administrative remedies the CIT has stated that "[t]he judicial determination of whether to require exhaustion of remedies in non-classification actions is thus individual to the circumstances of each case, with each exercise of judicial discretion in not requiring litigants to exhaust administrative remedies characterized as 'an exception to the doctrine of exhaustion.’" ⁴⁵ Consequently, the CIT and, by analogy, this Panel, should analyze the applicability of the doctrine of exhaustion on a case-by- case basis.

Further, in applying the exception to the doctrine of exhaustion set forth in 28 U.S.C. § 2637(d), courts have consistently stated that "courts must resist inflexible applications of the doctrine . . . which frustrate the ability to apply exceptions developed to cover 'exceptional cases or particular circumstances . . . where injustice might otherwise result' if it were strictly applied." ⁴⁶ More to the point in the present proceeding, the court in A.L. Tech Special Steel Corporation v. United States reasoned,

[t]hat inherent in the application of the exhaustion doctrine . . . lies a responsibility for the agency, necessarily vested with control over the administrative proceedings, to allow a sufficient opportunity to raise issues. Thus in determining whether questions are precluded from consideration on appeal, the [c]ourt will assess the practical ability of a party to have its arguments considered by the administrative body. ⁴⁷

Following this reasoning, the CIT has held that the doctrine of exhaustion should not apply where a party does not have an opportunity to raise the issue before the administrative agency. ⁴⁸ For example, in American Permac, Inc. v. United States, a West German manufacturer of dry cleaning machinery brought an action contesting the final results of a periodic review of an anti-dumping finding, arguing that import entries covered by the review were barred from consideration because of a four year statute of limitation on the liquidation of such entries. The Investigating Authority argued that the plaintiff failed to raise the limitation on liquidation issue at the administrative level and thus could not raise this issue before the Court. The Court concluded that the four year limitation period had not expired until long after the plaintiff's comment period in the administrative proceedings. On this basis the Court concluded the plaintiff did not have an opportunity to raise this issue during the comment period, and determined the exhaustion doctrine was not applicable. ⁴⁹

Additionally, in Carnival Cruise Lines, Inc. v. United States, the ITC also refused to apply the doctrine of exhaustion in circumstances analogous to the present case. In Carnival Cruise Lines the Court concluded that the U.S. Customs Service had not decided the issue in question. Accordingly, there had been no decision which the plaintiff could protest in the administrative proceeding. Thus, the Court concluded that the plaintiff did not have an opportunity to present that issue to the Customs Service. ⁵⁰

Finally, in Geneva Steel v. United States, the CIT declined to apply the exhaustion doctrine because the plaintiff was not made aware of an Investigating Authority determination regarding a particular issue until after the administrative agency’s amended determination. On this basis the Court allowed the plaintiff to present the issue to the court despite not having raised it before the administrative agency. ⁵¹ Thus, courts have consistently held that the doctrine of exhaustion of administrative remedies is not appropriate where the plaintiff does not have an opportunity to raise its argument to the administrative agency.

In addition to the lack of opportunity to raise a particular issue before an administrative agency, courts have set forth other circumstances in which the exhaustion doctrine should be inapplicable. Courts have held that the exhaustion doctrine should not apply if raising the issue before the agency would be futile. ⁵² The CIT has also declined to apply the doctrine where the plaintiff raises a purely legal issue that does not require further agency involvement. ⁵³

The facts and circumstances of this case indicate that Cemex did not have an appropriate opportunity to raise an objection to the Investigating Authority to challenge the 109.43 percent margin as first-tier BIA. The 109.43 percent was affirmed by the CIT on October 24, 1996, seven months after the issuance of the preliminary results in the present proceeding, where the Department used a lower margin rate of 61.85 percent as first-tier BIA. As noted earlier, the Investigating Authority did not apply the 109.43 percent margin to Cemex's fourth administrative review until it issued its final results on April 10, 1997, ⁵⁴ well after the termination of the regulatory comment period. The Investigating Authority could not have made its decision to use the 109.43 percent dumping margin until sometime after October 24, 1996. Both the October 1996 and the April 1997 dates were well after the termination of the comment period, which ended June 20, 1996. ⁵⁵ The use of the 109.43 percent margin was not disclosed to Cemex until April 10, 1997. Accordingly, Cemex lacked the practical ability at any time during the administrative proceeding to raise an objection to the 109.43 percent margin. ⁵⁶ This Panel believes that it would be inappropriate to require Cemex to anticipate the possibility that the 109.43 percent margin would be applied in final results, which were not published until nearly ten months after the close of the comment period.

Based on these facts and the Panel's discretion to apply the exhaustion doctrine on a case-by- case basis, this Panel concludes that it would be inappropriate to preclude Cemex from contesting the 109.43 percent margin for failure to exhaust administrative remedies.

B. Use of the 109.43 Percent Dumping Margin as BIA

The Panel notes initially that the remaining substantive issue in the proceeding raised by Cemex is a narrow one. Cemex challenges only the use of the 109.43 percent margin as first-tier BIA in place of the 61.85 percent margin used in the preliminary results. At the time of the preliminary results (May 14, 1996) and at the time the 12 month period for administrative reviews expired (August 31, 1995), 61.85 percent was the highest available margin for use as BIA under Investigating Authority policy.⁵⁷ Cemex does not challenge the Investigating Authority’s use of "best information available" to determine Cemex’s dumping margins for this review, conceding that it had failed to provide certain information requested by the Investigating Authority. Nor does Cemex challenge the Investigating Authority’s use of adverse "first-tier" BIA margin for Cemex, ⁵⁸ since that usage was consistent with then applicable law as interpreted by the Investigating Authority, ⁵⁹ and approved by the Court Appeals for the Federal Circuit. ⁶⁰ The Investigating Authority explained its BIA policy as follows:

"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 [original] 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." ⁶¹

Essentially, Cemex argues that where the Investigating Authority fails to complete an administrative review within in the 12-month period, it may not take advantage of that delay by using a more adverse, unduly punitive BIA that became available after the 12-month period, but before the final results in the current administrative review are issued. ⁶² In other words, Cemex contends that, because the review was initiated on September 16, 1994, and should have been completed by August 31,1995, ⁶³ the Investigating Authority was limited to using the highest prior rate available as of August 31, 1995— the end of the 12-month period for completion of administrative reviews— or 61.85 percent. ⁶⁴ Thus, Cemex contends that as of the date the final results were issued (April 10, 1997), the Investigating Authority was barred from using what then was the highest prior rate, the 109.43 percent rate resulting from the affirmance by the CIT October 24, 1996 ⁶⁵ of the recalculated Cemex dumping margin in the second remand in the second administrative review.

The Investigating Authority and STCC contend that the Investigating Authority has broad discretion in determining what BIA rate to use for a particular administrative review and is not restricted by whether the highest prior rate for any firm is finally determined within the 12-month period, or subsequently, prior to the Investigating Authority’s completion of the administrative review. The Investigating Authority and STCC rely on various court decisions holding that the 12-month period is directory, not mandatory, and that no legal penalty— such as restricting the Investigating Authority’s use of a higher prior dumping margin as BIA— may be imposed on the Investigating Authority for failure to meet the deadline. ⁶⁶

Continue to:  2. Time Period of Administrative Reviews

1 NAFTA Panel Docket No. 1.

² NAFTA, Art. 1904.14.

³ Docket no. 46.

⁴ Docket no. 63.

⁵ Docket no. 80.                

⁶ Docket no. 18.

⁷ Docket no. 38.

⁸ Docket no. 23.

⁹ Docket no. 32.

¹⁰ Order of April 20, 1998, at 2, Docket no. 80.

¹¹ See NAFTA Panel Rule 67.

¹² Official Transcript of Public Hearing, Docket no. 105 (English); Docket no. 106 (Spanish) [hereinafter "OT"] at 7-8. (Citations in the English language opinion are to the English version of the official transcript, Docket no. 105).

¹³ 55 Fed. Reg. 35,443 (1990).

¹⁴ 59 Fed. Reg. 47609 (1994).

¹⁵ 61 Fed. Reg. 24,283, 24,285 (1996).

¹⁶ Id. at 24,284.

¹⁷ Cemex, S.A. v. United States, Slip-Op. 96-170 (CIT 1996).

¹⁸ 62 Fed. Reg. 17,581 (1997).

¹⁹ Id.

²⁰ Id. at 17584-86 (1997).

²¹ Cemex brief of April 24, 1998, Docket no. 5, at 5.

²² For the United States, NAFTA Annex 1911 defines "final determination" inter alia, as including the final results of administrative reviews by the Department of Commerce under section 751(a) of the Tariff Act of 1930, as amended (19 U.S.C. § 1675(a) (1994)).

²³ The Court of Appeals for the Federal Circuit exercises exclusive appellate jurisdiction over decisions by the Court of International Trade. 28 U.S.C. § 1295(a)(5) (1998).

²⁴ As two expert commentators have noted, "The ‘judicial precedents’ are part of the anti-dumping provisions only ‘to the extent that a court of the importing party would rely on such materials in reviewing the final determination . . . .’ Neither the Fiscal Tribunal [of Mexico] nor the federal tribunals would ever use the decisions of other courts as a source of domestic law." J.C. Thomas & Sergio Lopez Allon, "NAFTA Dispute Settlement and Mexico: Interesting Treaties and Reconciling Common and Civil Law Systems in a Free Trade Area," 1995 Canadian Yearbook of International Law 75, 106.

²⁵ Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 476 U.S. 837, 842-43 (1984).

²⁶ Id. at 843, n. 9.

²⁷ Id. at n.11.

²⁸ National R.R. Passenger Corp. v. Boston & Maine Corp., 503 U.S. 407, 417 (1992).

²⁹ Id. at 419.

³⁰ Chevron, 467 U.S. at 844 (citations omitted).

³¹ Id; See also Daewoo Elec. Co. v. International Union of Electronic, Elec. Technical, Salaried and Mach. Workers, 6 F.3d 1511, 1516 (Fed. Cir. 1993), cert. denied, 512 U.S. 1204 (1994).

³² NAFTA, Article 1904.13(a)(iii) (emphasis added).

³³ Certain Cut-To-Length Carbon Steel Plate From Canada, USA-93-1904-04 (Oct. 31, 1994).

³⁴ Cemex Complaint at 3, Docket no. 7.

³⁵ Cemex brief of April 24, 1998, Docket no. 82; Cemex reply brief of July 8, 1998, Docket no. 98.

³⁶ OT at 7-8. The issue raised in Claim One was decided against Cemex in Gray Portland Cement and Clinker from Mexico, USA-95-1904-02 (Sept. 13, 1996), at 11.

³⁷ Investigating Authority brief at 20-21; STCC brief at 27-34.

³⁸ Investigating Authority brief at 20-21; STCC brief at 27-34.

³⁹ According to STCC’s exhibit at the public hearing, Cemex failed to argue in its post preliminary results brief or at the Commerce hearing that a higher BIA should be barred for the legal reason cited to this panel, and again failed to raise that legal issue when STCC argued in a submission of August 26, 1996, that any available higher rate should be used. STCC exhibit no. 1; see OT at 87-89.

⁴⁰ 28 U.S.C. § 2637(d) (1982).

⁴¹ Cemex reply brief at 2-3; Docket no. 98.

⁴² Id.

⁴³ United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 36-37 (1952); Philipp Bros., Inc. v. United States, 630 F.Supp. 1317, 1319 (Ct. Int’l Trade 1986), Rhone Poulenc S.A. v. United States, 583 F.Supp. 607, 609 (Ct. Int’l Trade 1984);

⁴⁴ 28 U.S.C. § 2637(d) (1982) (italics added); Alhambra Foundry Co., Ltd. v. United States, 685 F.Supp. 1252, 1255-57 (Ct. Int’l Trade 1988)

⁴⁵ Alhambra, 685 F.Supp. at 1255 (citations omitted).

⁴⁶ A.L. Tech Specialty Steel Corporation v. United States, 661 F.Supp. 1206, 1210 (Ct. Int’l Trade 1987), quoting Rhone Poulenc, 583 F.Supp. at 609.

⁴⁷ 661 F.Supp. at 1210 (citations omitted).

⁴⁸ Geneva Steel v. United States, 914 F.Supp. 563, 606 (Ct. Int’l Trade 1996); Carnival Cruise Lines, Inc. v. United States, 866 F.Supp. 1437, 1441 (Ct. Int’l Trade 1994); Philipp Bros., 630 F.Supp. at 1321; American Permac, Inc. v. United States, 642 F.Supp. 1187, 1188 (Ct. Int’l Trade 1986)

⁴⁹ 42 F.Supp. at 1188.

⁵⁰ 866 F.Supp. at 1441.

⁵¹ 914 F.Supp. at 606.

⁵² Rhone Poulenc, 583 F.Supp. at 610; Alhambra, 685 F. Supp. at 1256.

⁵³ Id. at 611-12; Saarstahl v. United States, 949 F.Supp. 863, 868-9 (Ct. Int’l Trade 1996).

⁵⁴ 62 Fed. Reg. 17,581 (1997).

⁵⁵ In the Administrative Record provided to this Panel by the Investigating Authority, the only substantive document listed after the filing of the rebuttal briefs on June 20, 1996, was a filing by STCC bringing two recent CIT decisions to the Investigating Authority’s attention, on August 26, 1996, which document was accepted by the Investigating Authority for filing. (A.R. Investigating Authority. No. 86.) The preliminary results specified that briefs commenting on the preliminary results be filed within 30 days of the publication of the preliminary results were published on May 14, 1996, and rebuttal briefs, within 37 days. 61 Fed. Reg. 24,283, 24,285 (1996). The thirty-seventh day was June 20, 1996.

⁵⁶ Cemex could perhaps have responded to the STCC filing of August 26, 1996, which advocated a first-tier BIA rate of 82.86 percent, but Cemex had no obligation to do so. Cemex’s failure to respond to STCC’s August 26, 1996 submission has no bearing on its asserted failure to exhaust administrative remedies with the respect to the application of the 109.43 percent margin.

⁵⁷ The Investigating Authority’s policy is set out in the Final Results of the Fourth Administrative Review. See infra, note 61 and accompanying text.

⁵⁸ Cemex brief, at 8; Docket no. 82.

⁵⁹ Under 19 U.S.C. § 1677e(c) (1994), the Investigating Authority is authorized to use BIA whenever "an interested party or any other person withholds information . . . fails to provide such information by the deadline . . . or in the form and manner requested . . . [or] significantly impedes" the proceeding. The then applicable Department of Commerce regulations, 19 C.F.R. § 353.37, also provide for use of BIA in such circumstances.

⁶⁰ Allied-Signal Aerospace Co. v. United States, 996 F.2d 1185, 1192 (Fed. Cir. 1993).

⁶¹ 62 Fed. Reg. 17,585. In the present proceeding, the Investigating Authority used the "first-tier" [(1), above] BIA rate methodology.

⁶² Cemex brief, at 8.

⁶³ One year from the last day of the anniversary month of the original antidumping order; see 19 U.S.C. § 1675(a)(1), Antidumping Duty Order: Gray Portland Cement and Clinker from Mexico, 55 Fed. Reg. 35,443 (Aug. 30, 1990). Relevant dates in the 4^th Administrative Review are as follows:

⁶⁴ The 61.85 percent rate used in the preliminary results in this proceeding was at that time the highest rate that had been assigned to any firm. Preliminary Results of Antidumping Duty Administrative Review; Gray Portland Cement and Clinker from Mexico, 61 Fed. Reg. 24,283, 24,285 (1996).

⁶⁵ See Gray Portland Cement and Clinker from Mexico; Final Results of Antidumping Duty Administrative Review, 62 Fed. Reg. 17,581, 17,586 (1997); Cemex Exh. 1 (time line).

⁶⁶ Investigating Authority brief at 30-31; Docket no. 94; STCC brief at 36 et seq.; Docket no. 96.